Foreword

The Texas Public Information (the “Act” or “TPIA”), Tex. Gov’t Code § 552.001 et. seq. (West 2014), was first enacted in 1973 as the Open Records Act (formerly Tex. Rev. Civ. Stat. Ann. art. 6252-17a). The statute built upon a rich political heritage in Texas, one which has historically demonstrated a strong commitment to the free flow of information and open government.

When Texas announced its independence from Mexico in 1836, its declaration stated: “[It] is an axiom in political science, that unless the people are educated and enlightened, it is idle to expect the continuance of civil liberty, or the capacity for self-government.” The Declaration of Independence of Texas para. 11 (1836). This concept of government is borrowed, of course, from Thomas Jefferson, James Madison, and the rationale of the United States Constitution. It was Madison who wrote that, “a popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance: and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” James Madison, letter to W.T. Berry (Aug. 4, 1822), reprinted in G.P. Hunt, The Writings of James Madison 103 (1910).

This concept of enlightened self-government was carried over to the Texas Constitutional Convention of 1845, when Texas joined the United States. In his opening remarks, Thomas J. Rusk, president of the convention, stated that: “The history of the world may be searched in vain for a parallel to the present instances of two governments amalgamating themselves into one, from a pure devotion to that great principle-that man, by sentiments with which his God has impressed, is capable of self-government.” Texas Constitutional Convention of 1845, debates of the Texas Convention (William Weeks, reporter, 1846).

In the years that followed, Texas courts recognized a broad common law right of access to government information. The first reported case dealing with the common law right of access was Jenkins v. State, 75 S.W. 312, 312 (Tex. Crim. App. 1903), which dealt with access to pretrial material in a criminal case. In 1915, the San Antonio Court of Civil Appeals wrote a landmark opinion on the common law right of access, in Palacios v. Corbett, 172 S.W. 777 (Tex. Civ. App.-San Antonio 1915, writ ref’d). The Palacios case dealt with the right of a citizen taxpayer to inspect county auditing papers. Id. at 778.

The presumptive common law right of access to government information in Texas appears to be extremely strong absent a specific statute restricting public access. As the court said in Gill v. Snow, 644 S.W.2d 222, 224 (Tex. App.—Fort Worth 1982, no writ), “[t]his State’s policy has been found to be that all information kept by the government is of legitimate public concern unless the legislature rules that the need for confidentiality is outweighed by the public’s right to know.”

Nevertheless, it took a substantial government scandal to provide the impetus for passage of an open records statute and strengthening of the Texas Open Meetings Act. In 1972, the so-called Sharpstown scandal broke and resulted in the indictment and successful prosecution of a number of government officials. Other high government officials were put under a cloud of suspicion, although not indicted. In 1973, a reform-minded Legislature, led by a coalition of members known as the “Dirty 30,” strengthened the Texas Open Meetings Act, and passed the Texas Open Records Act, renamed in 1995 to the Public Information Act. The first section of the Act sets out its policy:

[E]ach person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.

Open Records

I. Statute

A. Who can request records?

1. Status of requester

The Act places no limits on who may request public records. See City of Garland, 165 S.W.3d at 820 (“‘Public information’ must be made available to the public upon request by any person.”). The Act does not require that the requestor be a Texas resident. Section 552.221(a) of the Act specifically directs the officer for public information to produce public information on “application” by “any person.”

2. Purpose of request

A person may request public information for any reason and need not cite any reason at all for a request. A person’s motive for requesting the information cannot be a consideration in determining whether the information must be disclosed. Indus. Found. of the South v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 674 (Tex. 1976), cert. denied, 430 U.S. 931 (1977); see also A & T Consultants Inc. v. Sharp, 904 S.W.2d 668, 676 (Tex. 1995) (reasoning that the legislature enacted the Act “to conform loosely to the federal Freedom of Information Act,” which also bars the government from examining the motives or interests of the requestor); Tex. Comptroller of Pub. Accounts v. Attorney Gen. of Tex., 354 S.W.3d 336, 346 n.10 (Tex. 2010). Section 552.222 specifically prohibits the officer for public information from making any inquiry of a requestor other than to establish the requestor’s proper identification, to clarify a request if the governmental body is unclear as to what information is requested, and to discuss with the requestor how the scope of a request might be narrowed if a large amount of information has been requested. Also, Section 552.223 provides that all requests shall be treated “uniformly without regard to the position or occupation of the requestor, the person on whose behalf the request is made, or the status of the individual as a member of the media.”

3. Use of records

Nothing in the Act restricts subsequent use of the information, and once information has been released to one member of the general public, it must be made available to anyone. See Tex. Gov’t Code § 552.007; Tex. Att’y Gen. ORD-192 (1978); Tex. Att’y Gen. ORD-163 (1977); Tex. Att’y Gen. ORD-490 (1988) (“the act prohibits ‘selective disclosure.”); Tex. Comptroller of Pub. Accounts, 354 S.W.3d at 343.

NOTE: The boundaries of the Act largely have been defined by the Texas Attorney General either in standard Attorney General opinions or in more than 680 “Open Records Decisions,” or ORDs. Open records decisions address the factual and legal issues involved in deciding whether specific requested information, supplied to the Attorney General for in camera review, is exempt. Standard “Attorney General opinions” only address questions of law, not fact. While Attorney General’s interpretation of the Act may be persuasive, it is not controlling. City of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex. 2010).

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

Virtually all local and state government bodies and many quasi-governmental bodies are subject to the Act. Section 552.002 makes public “information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business:

(1) by a governmental body; or

(2) for a governmental body and the governmental body owns the information or has a right of access to it.”

The Act’s definition of “governmental body” is quite broad. Section 552.003(l)(A) provides that the term means:

“(i) a board, commission, department, committee, institution, agency, or office that is within or is created by the executive or legislative branch of state government and that is directed by one or more elected or appointed members;

(ii) a county commissioners court in the state;

(iii) a municipal governing body in the state;

(iv) a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality;

(v) a school district board of trustees;

(vi) a county board of school trustees;

(vii) a county board of education;

(viii) the governing board of a special district;

(ix) the governing body of a nonprofit corporation organized under Chapter 67, Water Code, that provides a water supply or wastewater service, or both, and is exempt from ad valorem taxation under section 11.30, Tax Code;

(x) a local workforce development board created under Section 2308.253;

(xi) a nonprofit corporation that is eligible to receive funds under the federal community services block grant program and that is authorized by this state to serve a geographic area of the state; and

(xii) the part, section, or portion of an organization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds.”

Section 552.003(l)(B) explicitly excludes the judiciary from the definition of “governmental body.” A deliberative body that has rulemaking or quasi-judicial power is a “governmental body” and is subject to the Act. Tex. Gov’t Code § 552.003(l)(A)(iv). Quasi-judicial power has been defined as: (1) the power to exercise judgment and discretion; (2) the power to hear and determine or to ascertain facts and decide; (3) the power to make binding orders and judgments; (4) the power to affect the personal or property rights of private persons; (5) the power to examine witnesses, to compel the attendance of witnesses, and to hear the litigation of issues on a hearing; and (6) the power to enforce decisions or impose penalties. Blankenship v. Brazos Higher Educ. Auth., 975 S.W.2d 353, 360 (Tex. App.—Waco 1998, pet. denied) (citing City of Austin v. Evans, 794 S.W.2d 78, 83-84 (Tex. App.—Austin 1990, no writ)). An entity possessing none of these characteristics is not a quasi-judicial entity for purposes of establishing that it is a government body. Id.; San Antonio Building & Const. Trades Council v. City of San Antonio, 224 S.W.3d 738, 749 (Tex. App.—San Antonio 2007, pet. denied) (revenue bonds to be sold to private investors were not “public funds” where no funds of the State of Texas or the City would be used to secure and pay the bonds).

Section 51.212 of the Texas Education Code expressly provides that “[a] campus police department of a private institution of higher education is a law enforcement agency and a governmental body for purposes of [the Act],” but “only with respect to information relating solely to law enforcement activities.” (emphasis added).

1. Executive branch

2. Legislative bodies

the Act, which exempts certain categories of information pertinent to the legislature. Drafts or working papers involved in the preparation of proposed legislation are excluded from the Act. Tex. Gov’t Code § 552.106; see also Tex. Att’y Gen. ORD-380 (2003) (certain information related to proposed adult entertainment business licensing ordinance excepted from disclosure because it reflected internal policy judgments, recommendations, and proposals).

Private correspondence or communications by an elected office holder, the disclosure of which would constitute an invasion of privacy, are excepted from the Act. Tex. Gov’t Code § 552.109. This exception applies only to correspondence sent out by the official, not to correspondence that is received by the official. In addition, this exemption only protects the privacy interests of the public official. See Tex. Att’y Gen. ORD-473 (1987). It does not protect the privacy interests of the person discussed in the communication or the privacy of the recipient of the communication although it may be appropriate to redact the parties’ names such as those of students and parents under related statutes. See Tex. Att’y Gen. ORD-332 (1982).

Certain records of communications between citizens and members of the legislature or the lieutenant governor may be confidential by statute. Tex. Gov’t Code § 552.146. Exempt correspondence includes handwritten notes on a personal calendar. See Tex. Att’y Gen. ORD-145 (1976).

An itemized list of long distance calls made by legislators and charged to their contingent expense accounts is not excepted because such a list is not a “communication.” See Tex. Att’y Gen. ORD-40 (1974). See also Tex. Att’y Gen. ORD-636 (1995) (cellular billing records are generally considered public information).

Section 552.111 exempts from disclosure interagency or intraagency memoranda or letters that would not be available by law to a party in litigation with the agency.

3. Courts

The judiciary is specifically excluded from the Act’s definition of “governmental body.” See Tex. Gov’t Code § 552.003(1)(B). The Act provides that “[a]ccess to information collected, assembled, or maintained by or for the judiciary is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules,” and that the Act “does not address whether information is considered to be information collected, assembled, or maintained by or for the judiciary.” § 552.0035. The Texas Supreme Court has adopted Rule 12 of the Texas Rules of Judicial Administration that provides for public access to Judicial records.

To fall under the judiciary exclusion, requested records must contain information that pertains to judicial proceedings and be subject to direct supervision of a court. See Tex. Att’y Gen. ORD-17331 (2009); Tex. Att’y Gen. ORD-646 (1996) (finding that function that governmental entity performs determines whether entity falls within judiciary exception to the Act); see also Tex. Att’y Gen. ORD-1083 (2004) (information created by a municipal court judge constituted a record of the judiciary because it was made “at the request of the presiding judge regarding the policies of the Court and policy changes that should be made”); but see Tex. Att’y Gen. ORD-204 (1978) (information held by county judge that does not pertain to proceedings before county court subject to Public Information Act). The Act itself does not define “judiciary,” but the Texas Attorney General’s office has advised that the records of the State Board of Law Examiners and information within the constructive possession of a grand jury are all considered records of the “judiciary.” See Tex. Att’y Gen. ORD-136 (1976); Tex. Att’y Gen. ORD-513 (1988). Likewise, the Attorney General concluded that the Bexar County Personal Bond Program was functioning as an arm of the court when it conducted certain investigations, and therefore the resulting reports were records of the “judiciary” and not subject to the Act. Tex. Att’y Gen. ORD-572 (1990). However, the district attorney’s office is not considered a branch of the judiciary. See Holmes v. Morales, 924 S.W.2d 920, 922-23 (Tex. 1996). If a district attorney has a list of grand jurors actually empaneled during a particular term of court, the list should be made public if requested. Tex. Att’y Gen. ORD-433 (1986). In comparison, a list of prospective grand jurors’ names is not subject to required disclosure. Id.; see also State v. Newton, 179 S.W.3d 104, 111 (Tex. App.—San Antonio 2005, no pet.) (grand jury is an extension of the judiciary and grand jury information is, therefore, not subject to the Act). The Court Reporters Certification Board also does not come within the Act’s definition of “judiciary.” Tex. Att’y Gen. ORD-527 (1989). As such, it was a proper request under the Act for the names and addresses of all shorthand reporters who have received a notice of informal hearing regarding disciplinary matters and copies of all notices of formal hearings sent to the shorthand reporters. Id.

4. Nongovernmental bodies

A nominally private entity may be deemed a governmental body subject to the Act to the extent that it is supported in whole or in part by public funds such that it is sustained by such funds or acts as the functional equivalent of a governmental body. See Section 552.003(1)(A)(xii); see, also Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (Tex. 2015).

The following bodies were found to be “governmental body” subject to the Act:

a community supervision and corrections department (limited to personnel files and other records reflecting the day-to-day management of such department) (Tex. Att’y Gen. ORD-646 (1996)).

a municipal economic development foundation and a municipal chamber of commerce (to the extent it receives support from the foundation) (Tex. Att’y Gen. ORD-621(1994)).

the sections of a museum that are supported by the city or the state (Tex. Att’y Gen. ORD-602 (1992)).

a public nonprofit housing finance corporation created by local government, where the corporation’s funds by law are public funds and belong to the corporation’s sponsoring local government (Tex. Att’y Gen. ORD-601 (1992)).

a nonprofit corporation established to administer federal job training partnership funds granted to the state (Tex. Att’y Gen. ORD-509 (1988)).

a pet shelter to which a county contractually delegated the administration of a pet registration program, including collection and retention of registration fees that would otherwise be payable to the county. Tex. Att’y Gen. ORD-4135 (2011).

5. Multi-state or regional bodies

6. Advisory boards and commissions, quasi-governmental entities

The following were found to be governmental bodies under the Act:

1. a search advisory committee established by the Board of Regents of the Texas A & M System to recommend candidates for the position of President of Texas A & M University, and whose members were reimbursed for the expense of travel, meals and lodging. Tex. Att’y Gen. ORD-273 (1981).

2. the North Texas Commission constituted a “governmental body” because its contract with the City of Fort Worth failed to impose on the commission a specific and definite obligation to provide a measurable amount of service in exchange for a certain amount of money, as one would expect to find in a typical arms-length contract for services between a vendor and a purchaser. Tex. Att’y Gen. ORD-228 (1979).

The following did not qualify as governmental bodies under the Act:

1. the advisory board of the Children’s Advocacy Center of Texas (“CACCT”). Tex. Att’y Gen. ORD-5293 (2004). Although the CACCT was a governmental body subject to the Act, its advisory board was not because it served voluntarily, on an as-needed basis, in a nonvoting capacity, and received no public funds.

2. the Fiesta San Antonio Commission, which was designated by city ordinance as fiesta planning agency but received no public funds. Tex. Att’y Gen. ORD-569 (1990).

3. a mayor’s task force that examined city governmental structure but did not spend and was not supported by public funds. Tex. Att’y Gen. ORD-317 (1982).

7. Others

The Act applies to property owners’ associations in the same manner as a governmental body if:
1. membership in the property owners’ association is mandatory for owners or a defined class of owners of private real property in a defined geographic area in a county with a population of 2.8 million or more or in a county adjacent to a county with a population of 2.8 million or more;
2. the property owners’ association has the power to make mandatory special assessments for capital improvements or mandatory regular assessments; and
3. the amount of the mandatory special or regular assessments is or has ever been based in whole or in part on the value at which the state or a local governmental body assesses the property for purposes of ad valorem taxation under Section 20, Article VIII, Texas Constitution. Tex. Gov’t Code § 552.0036.

C. What records are and are not subject to the act?

The Act covers virtually all information possessed by governmental bodies. Section 552.002 makes public “information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business” by a governmental body or for a governmental body, and the governmental body owns the information or has a right of access to it. The Texas Supreme Court has held that a document labeled “draft” is public information if, under a law or ordinance or in connection with the transaction of official business, it is collected, assembled, or maintained by or for a governmental body. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 358-59 (Tex. 2000).

Although the Act does not require governmental bodies to prepare new information (Tex. Att’y Gen. ORD-483 (1987); Tex. Att’y Gen. ORD-452 (1986); Tex. Att’y Gen. ORD-342 (1982); A & T Consultants, Inc., 904 S.W.2d at 676, some compilation may be required. See Tex. Att’y Gen. Op. No. JM-672 (1987) (suggesting that some compilation by way of a minimal computer search using an existing computer program may be required); § 552.231. A governmental body is not required under this chapter to allow the inspection of or to provide a copy of information in a commercial book or publication purchased or acquired by the governmental body for research purposes if the book or publication is commercially available to the public. § 552.027.

The Act applies to any information in a governmental body’s possession, even if originally created by an outside consultant or some other entity. Tex. Att’y Gen. ORD-335 (1982); see Tex. Att’y Gen. ORD-317 (1982); Tex. Att’y Gen. ORD-192 (1978). Even information located in the office of an outside consultant may be subject to the Act if (1) the information relates to a governmental body’s official duties, (2) the consultant acts as the governmental body’s agent in gathering the information, and (3) the governmental body is entitled to access to the information. See Tex. Att’y Gen. ORD-585 (1991); Tex. Att’y Gen. ORD-462 (1987) (records of law firm considered “public information” because they were prepared at direction of and under substantial control by University of Houston, for which law firm was acting as agent). But see Tex. Att’y Gen. ORD-631 (1995) (noting that such information may be exempted from disclosure under Section 552.111 where it includes advice, recommendations, and opinions regarding administrative and personnel matters of broad scope that affect the governmental body’s policy mission). A governmental body cannot authorize its agents to keep information confidential (even from the body) if the governmental body itself has no authority to keep such information confidential. Tex. Att’y Gen. ORD-585 (1991).

1. What kinds of records are covered?

As stated above, the Act covers virtually all information possessed by governmental bodies. Section 552.002 makes public “information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business” by a governmental body or for a governmental body, and the governmental body owns the information or has a right of access to it.

For example, government investments are subject to the Act. Section 552.0225 provides that “it is the policy of this state that investments of government are investments of and for the people and the people are entitled to information regarding those investments.” That section lists categories of information held by a governmental body relating to its investments that constitute public information and are not excepted from disclosure under the Act. Tex. Gov’t Code § 552.0225(b). This includes:

(1) the name of any fund or investment entity the governmental body is or has invested in;

(2) the date that the fund or investment entity was established;

(3) each date the governmental body invested in the fund or investment entity;

(4) the amount of money, expressed in dollars, the governmental body has committed to a fund or investment entity;

(5) the amount of money, expressed in dollars, the governmental body is investing or has invested in any fund or investment entity;

(6) the total amount of money, expressed in dollars, the governmental body received from any fund or investment entity in connection with an investment;

(7) the internal rate of return or other standard used by a governmental body in connection with each fund or investment entity it is or has invested in and the date on which the return or other standard was calculated;

(8) the remaining value of any fund or investment entity the governmental body is or has invested in;

(9) the total amount of fees, including expenses, charges, and other compensation, assessed against the governmental body by, or paid by the governmental body to, any fund or investment entity or principal of any fund or investment entity in which the governmental body is or has invested;

(10) the names of the principals responsible for managing any fund or investment entity in which the governmental body is or has invested;

(11) each recusal filed by a member of the governing board in connection with a deliberation or action of the governmental body relating to an investment;

(12) a description of all of the types of businesses a governmental body is or has invested in through a fund or investment entity;

(13) the minutes and audio or video recordings of each open portion of a meeting of the governmental body at which an item described by this subsection was discussed;

(14) the governmental body’s percentage ownership interest in a fund or investment entity the governmental body is or has invested in;

(15) any annual ethics disclosure report submitted to the governmental body by a fund or investment entity the governmental body is or has invested in; and

(16) the cash-on-cash return realized by the governmental body for a fund or investment entity the governmental body is or has invested in.

Section 552.029 further provides that certain information about an inmate who is confined in a facility operated under a contract with the Texas Department of Criminal Justice is subject to disclosure. This includes the following:

(1) the inmate’s name, identification number, age, birthplace, department photograph, physical description, or general state of health or the nature of an injury to or critical illness suffered by the inmate;

(2) the inmate’s assigned unit or the date on which the unit received the inmate, unless disclosure of the information would violate federal law relating to the confidentiality of substance abuse treatment;

(3) the offense for which the inmate was convicted or the judgment and sentence for that offense;

(4) the county and court in which the inmate was convicted;

(5) the inmate’s earliest or latest possible release dates;

(6) the inmate’s parole date or earliest possible parole date;

(7) any prior confinement of the inmate by the Texas Department of Criminal Justice or its predecessor; or

(8) basic information regarding the death of an inmate in custody, an incident involving the use of force, or an alleged crime involving the inmate.

Section 552.0221 provides that certain information about an employee or trustee of a public employee pension system is subject to disclosure. This includesinformation concerning the income, salary, benefits, and bonuses received from the pension system by the employee in the person’s capacity as an employee of the system. Information concerning the service of a trustee of a public employee pension system is also subject to the Act, including information concerning the income, salary, benefits, and bonuses received from the pension system by the trustee in the person’s capacity as a trustee of the system. Id.

Section 552.025 provides for access to tax rulings and opinions. A governmental body with taxing authority that issues a written determination letter, technical advice memorandum, or ruling that concerns a tax matter shall index the letter, memorandum, or ruling by subject matter. On request, the governmental body shall make the index prepared and the document itself available to the public, subject to certain requirements and limitations. A governmental body cannot withhold from the public or limit the availability to the public of a written determination letter, technical advice memorandum, or ruling that concerns a tax matter and that is issued by a governmental body with taxing authority. Id.

Section 552.024 provides each employee or official of a governmental body and each former employee or official of a governmental body shall choose whether to allow public access to their address, telephone number, or social security number, or to information that reveals whether the person has family members. Id.

Section 552.023 provides for a special right of access to confidential information. If necessary, a person or a person’s authorized representative has a special right of access, beyond the right of the general public, to information held by a governmental body that relates to the person and that is protected from public disclosure by laws intended to protect that person’s privacy interests. The governmental body may not deny access to information to the person, or the person’s representative, to whom the information relates on the grounds that the information is considered confidential by privacy principles under this chapter but may assert as grounds for denial of access other provisions of this chapter or other law that are not intended to protect the person’s privacy interests. Id.

3. Are certain records available for inspection but not copying?

Generally, an officer for public information of a governmental body shall promptly produce public information for inspection, duplication, or both on application by any person to the officer. An officer for public information complies with the request by providing the information for inspection or duplication in the offices of the governmental body. Tex. Gov’t Code § 552.221.
Pursuant to Section 552.027(c), a governmental body shall allow the inspection of information in a book or publication that is made part of, incorporated into, or referred to in a rule or policy of a governmental body.

4. Telephone call logs

Telephone call logs are considered public information, provided the records meet the general test outlined in Section 552.002—collected, assembled, or maintained or in connection with the transaction of official business, and the governmental body owns the information or has a right of access to it. See Tex. Att’y Gen. OR2015-14345 (2015). In letter rulings, the Attorney General’s Office has even found that the personal telephone records of government employees are subject to the act, to the extent the records relate to official business. See id.; Tex. Att’y Gen. OR2013-09446 (2013).

5. Electronic records (e.g., databases, metadata)

In 2013, the Legislature extended the Act to cover electronic communications made in connection with official business. Section 552.002(a-2) states: “[t]he definition of ‘public information’ . . . applies to and includes any electronic communication created, transmitted, received, or maintained on any device if the communication is in connection with the transaction of official business.”

a. Can the requester choose a format for receiving records?

Pursuant to Section 552.228(b), if public information exists in an electronic or magnetic medium, a requestor may request a copy either on paper or in an electronic medium, such as on diskette or on magnetic tape, if the following three requirements are met: (1) the governmental body has the technological ability to produce a copy of the requested information in the requested medium, (2) such body is not required to purchase any software or hardware to accommodate the request, and (3) provision of a copy of the information in the requested medium would not violate any copyright agreements between the body and a third party. If a governmental body is unable to comply with a request for any of these reasons, it shall provide a paper copy of the information or a copy in another medium that is acceptable to the requestor. Tex. Gov’t Code § 552.228(c). In addition, a governmental body does not comply with the Act by releasing substitute documents to the requestor unless the requestor agrees to such substitution. See Tex. Att’y Gen. ORD-633 (1995).

b. Can the requester obtain a customized search of computer databases to fit particular needs

Read together, sections 552.228 and 552.231 appear to allow a requestor to obtain information through customized searches. Section 552.228 provides the requestor with the option of obtaining information in an electronic or magnetic medium, with some restrictions. See supra. Section 552.231 provides that the governmental body shall timely provide to the requestor a written statement, generally within 20 days after receipt of the request, if that body determines: (1) that responding to the request will require programming or manipulation of data, and (2) that (A) compliance is not feasible or will result in substantial interference with ongoing operations, or (B) the information could be made available only at a cost that covers the programming and manipulation of data. The written statement must include, among other things specified in that provision, a statement of the estimated cost and time of providing the information in the requested form. Tex. Gov’t Code § 552.231. Upon properly notifying the requestor, the governmental body is under no further obligation to provide the information until the requestor states in writing that it wants the governmental body to proceed with the request under the terms specified by the governmental body or other terms to which the requestor and the governmental body agree. Tex. Gov’t Code § 552.231(d).

c. Does the existence of information in electronic format affect its openness?

The liberal language of the Act, including its general policy statement, coupled with the fact that the Act expressly includes (1) devices that can store an electronic signal, and (2) data held in computer memory as media containing public information, provide an argument that the electronic medium on which information is contained does not affect the “openness” of the information. See §§ 552.001; 552.002(b)(3), (c).

d. Online dissemination

Section 552.272 provides for the inspection of electronic records when copies are not requested. Subsection (d) states that “if information is created or kept in an electronic form, a governmental body is encouraged to explore options to separate out confidential information and to make public information available to the public through electronic access through a computer network or by other means.” Generally, a charge may not be imposed for access to online information unless complying with a request will require programming or manipulation of data. Tex. Gov’t Code § 552.272(a).

8. Social media posts

9. Computer software

Texas Education Code § 51.914 specifically excepts computer programs developed (in whole or in part) at a state institution of higher education from disclosure under the Act.

The Attorney General addressed a request for copies of computer programs used by Southwest Texas State University to maintain records in Tex. Att’y Gen. ORD-581 (1990). While the Attorney General found that the term “information” as used in the Act “is certainly comprehensive,” he determined that “where information has no other significance than its use as a tool for the maintenance, manipulation, or protection of public property, we find that it is not the kind of information made public” by the Act. Id. at 4. Accordingly, the Attorney General advised that the computer programs need not be released. Id. at 5; see also Tex. Att’y Gen. OR2011-06282. In addition, where release of copies of computer programs owned by third parties and protected by copyright would violate federal law, disclosure is not required. Tex. Att’y Gen. ORD-505 (1988).

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

Section 552.261 provides that “[t]he charge for providing a copy of public information shall be an amount that reasonably includes all costs related to reproducing the public information, including costs of materials, labor, and overhead.” Such a charge even can include the cost of deleting confidential information. Tex. Att’y Gen. ORD-488 (1988). But see Tex. Att’y Gen. ORD-633 (1995) (noting that a requestor cannot be charged for costs incurred in redacting or sorting out information excepted under the Act’s nonmandatory exceptions, such as in the case of sections 552.003, 552.007, and 552.008, because they are not “costs related to reproducing the record” and are not a factor in determining whether the record is “readily available”). However, if “a request is for 50 or fewer pages of paper records, the charge for providing the copy of the public information may not include costs of materials, labor, or overhead, but shall be limited to the charge for each page of the paper record that is photocopied, unless the pages to be copied are located in: (1) two or more separate buildings that are not physically connected with each other; or (2) a remote storage facility.” § 552.261(a)(1), (2).

Section 552.262 sets forth guidelines and rules of the Attorney General, which adopts rules for use by each governmental body in determining charges under the Act. The charges for public information may not be excessive and may not exceed the actual cost of producing the information. The rules of the Attorney General do not apply to a state governmental body that is not a “state agency.” § 552.262(e).

The custodian cannot consider the cost or method of supplying requested information in deciding whether the information is public and subject to inspection. See Indus. Found. of the South, 540 S.W.2d at 687. In Industrial Foundation, a nonprofit corporation sought access to workers’ compensation claims information, much of which was stored on a computer. The governmental agency argued that retrieval would overwork and disrupt agency employees. The Texas Supreme Court held that the agency could not consider the cost or method of supplying the requested information. It further held that the officer for public records and the State Board of Control [now the State Purchasing and General Services Commission] should determine “[t]he least expensive method of supplying the information,” although the Act “makes clear that all costs incurred in providing access to public records must be borne by the requesting party.” Id.

A custodian must provide the requestor with a written, itemized statement if a request for a copy of public information or inspection of a paper record will result in the imposition of a charge that exceeds $40. Tex. Gov’t Code § 552.2615. The itemized statement must detail all estimated charges that will be imposed, including any allowable charges for labor or personnel costs. Id. If a less costly alternative method of viewing the records is available, the statement must include a notice that the requestor may contact the governmental body regarding the alternative method. Id. In 2005, the Texas legislature added a provision requiring the requestor to timely respond within ten business days to the written statement or have the request for information withdrawn. Tex. Gov’t Code § 552.2615(b).

2. Particular fee specifications or provisions

Section 552.261(a) provides that “[t]he charge for providing a copy of public information shall be an amount that reasonably includes all costs related to reproducing the public information, including costs of materials, labor, and overhead.”
Where a request is for more than 50 pages of paper records, Section 552.261 allows a governmental body to assess charges for labor, overhead, and materials. Such assessment is limited to the charge for each page of the paper record that is copied, except in certain circumstances specified in 552.261(a)(1) & (a)(2). The requestor may require a written statement as to the amount of time that was required to produce and provide the copy.
Section 552.263 permits governmental bodies to require a deposit or bond for payment of anticipated costs for the preparation of a copy of public information.
Section 552.264 provides that one copy of public information that is requested from a state agency by a member, agency, or committee for information to be used for legislature purposes shall be provided without charge.
Section 552.265 provides that the charge for providing a paper copy made by a district or county clerk’s office shall be the charge provided by Chapter 51 of the Government Code, Chapter 118, Local Government Code, or other applicable law.
Section 552.266 provides that the charge for providing a copy made by a municipal court clerk shall be the charge provided by municipal ordinance.
If the requestor does not request a copy of public information, a charge may not be imposed for making available for inspection any public information that exists in a paper record, except as follows. Tex. Gov’t Code § 552.271(a). If a requested page contains confidential information that must be edited from the record before the information can be made available for inspection, the governmental body may charge for the cost of making a photocopy of the page from which confidential information must be edited. No charge other than the cost of the photocopy may be imposed under this subsection. Tex. Gov’t Code § 552.271(b). An officer for public information or the officer’s agent may require a requestor to pay, or to make a deposit or post a bond for the payment of, anticipated personnel costs for making available for inspection public information that exists in paper records only if: (1) the public information specifically requested by the requestor: (A) is older than five years; or (B) completely fills, or when assembled will completely fill, six or more archival boxes; and (2) the officer for public information or the officer’s agent estimates that more than five hours will be required to make the public information available for inspection. Tex. Gov’t Code § 552.271(c). If the governmental body has fewer than 16 full-time employees, the payment, the deposit, or the bond may be required only if: (1) the public information specifically requested by the requestor: (A) is older than three years; or (B) completely fills, or when assembled will completely fill, three or more archival boxes; and (2) the officer for public information or the officer’s agent estimates that more than two hours will be required to make the public information available for inspection. Tex. Gov’t Code § 552.271(d).
In response to a request to inspect information that exists in an electronic medium and that is not available directly on-line to the requestor, a charge may not be imposed for access to the information, unless complying with the request will require programming or manipulation of data. If programming or manipulation of data is required, the governmental body shall notify the requestor before assembling the information and provide the requestor with an estimate of charges that will be imposed to make the information available. Tex. Gov’t Code § 552.2729(a). If public information exists in an electronic form on a computer owned or leased by a governmental body and if the public has direct access to that computer through a computer network or other means, the electronic form of the information may be electronically copied from that computer without charge if accessing the information does not require processing, programming, or manipulation on the government-owned or government-leased computer before the information is copied. Tex. Gov’t Code § 552.2729(b). If public information exists in an electronic form on a computer owned or leased by a governmental body and if the public has direct access to that computer through a computer network or other means and the information requires processing, programming, or manipulation before it can be electronically copied, a governmental body may impose charges. Tex. Gov’t Code § 552.2729(c). If information is created or kept in an electronic form, a governmental body is encouraged to explore options to separate out confidential information and to make public information available to the public through electronic access through a computer network or by other means. Tex. Gov’t Code § 552.2729(d). The provisions that prohibit a governmental entity from imposing a charge for access to information that exists in an electronic medium do not apply to the collection of a fee set by the supreme court after consultation with the Judicial Committee on Information Technology as authorized by Section 77.031 for the use of a computerized electronic judicial information system. Tex. Gov’t Code § 552.2729(e).

3. Provisions for fee waivers

Section 552.267 provides that public information shall be furnished for free or at a reduced charge “if the governmental body determines that waiver or reduction of the charge is in the public interest because providing the copy of the information primarily benefits the general public.” That section also provides that copying costs may be waived if the cost to a governmental body of processing the collection of a charge for a copy of public information will exceed the amount of the charge. Tex. Gov’t Code § 552.267(b). Finally, Section 552.264 provides that a member of the legislature is entitled to one free copy of public information that is requested from a state agency.

4. Requirements or prohibitions regarding advance payment

Section 552.263(a) permits governmental bodies to require a deposit or bond for payment of anticipated costs for the preparation of a copy of public information if the officer for public information or the officer’s agent has provided the requestor with the required written itemized statement detailing the estimated charge for providing the copy and if the charge for providing the copy of the public information specifically requested by the requestor is estimated by the governmental body to exceed: (1) $100, if the governmental body has more than 15 full-time employees; or (2) $50, if the governmental body has fewer than 16 full-time employees.

Prior to this language, which was added by the 1995 amendments and revised substantially in 1999, the Texas Supreme Court had already held that the requestor may be required to post a bond before the governmental body’s preparation of the records. See Indus. Found. of the South., 540 S.W.2d at 687-88. “These anticipated costs should of course include the expenses which may be incurred incident to the redaction of the records for the protection of individual claimants’ privacy interests.” Id. at 688; see also A & T Consultants, Inc., 904 S.W.2d at 676-77.

5. Have agencies imposed prohibitive fees to discourage requesters?

Anecdotal accounts indicate this has frequently occurred over the years. However, Section 552.268 specifically instructs governmental bodies to “make reasonably efficient use of supplies and other resources to avoid excessive reproduction costs.” Any agency attempting to use prohibitive fees to discourage requests violates the language of sections 552.269 and 552.261. A person who believes he has been overcharged for a copy of public information may complain to the Attorney General in writing, and must set forth the reasons why the person believes the charges are excessive. If, after review, the Attorney General determines that an overcharge occurred, the governmental body must promptly adjust its charges in accordance with the determination. Tex. Gov’t Code § 552.269(a). Under Section 552.269(b), “[a] person who overpays for a copy of public information because a governmental body refuses or fails to follow the rules for charges adopted by the attorney general is entitled to recover three times the amount of the overcharge if the governmental body did not act in good faith in computing the costs.” Also, under Section 552.353, an officer for public information “commits an offense if, with criminal negligence,” the officer “fails or refuses to give access to, or to permit or provide copying of, public information.”

6. Fees for electronic records

E. Who enforces the Act?

A requestor or the Attorney General may file suit for a writ of mandamus compelling a governmental body to make information available for public inspection if the governmental body refuses to request an Attorney General’s decision or refuses to supply public information that the Attorney General has determined is public information and not excepted under the Act. Tex. Gov’t Code § 552.321. “[A] trial court has the authority to grant mandamus relief when an agency refuses to timely request an attorney general opinion, when the agency refuses to supply public information in accordance with the [Act], and also when the agency fails to timely notify the requestor of its decision to seek an attorney general opinion.” Simmons v. Kuzmich, 166 S.W.3d 342, 348 (Tex. App.—Fort Worth 2005, no pet.).

Section 552.3215(e) further provides that a complainant may file a complaint with the district or county attorney where the relevant governmental body is located. The district or county attorney must then determine whether the governmental body violated the Act and whether to pursue the matter. Tex. Gov’t Code § 552.3215(g).

1. Attorney General's role

Section 552.301 generally requires a governmental bodies to seek an Attorney General ruling before withholding public information. After reviewing the submitted materials and briefing, the Attorney General then issues a decision as to which records responsive to the request, if any, can be withheld.

These decisions come in two forms: formal Open Records Decisions (“ORDs”) and informal Open Records Letter Rulings (“ORLs”). Rulings of the latter type are limited to the particular information and facts presented in the request at issue, and cannot be relied upon as previous determinations. ORDs on the other hand, may constitute a previous determination—meaning the governmental body need not request a decision from the Attorney General before withholding the records. See Tex. Gov’t Code § 552.301(a). Previous determinations are rare, and governmental bodies are cautioned against relying on an ORD as a previous determination to evade Section 552.301(a). See Tex. Att’y Gen. Op. ORD 673 (2001).

The Attorney General may also file suit for a writ of mandamus compelling a governmental body to make information available for public inspection if the governmental body refuses to request an Attorney General’s decision or refuses to supply public information that the Attorney General has determined is public information and not excepted under the Act. Tex. Gov’t Code § 552.321. If the Attorney General enters into a proposed settlement that all or part of the information that is the subject of the suit should be withheld, the Attorney General shall notify the requestor of that decision and, if the requestor has not intervened in the suit, notify the requestor of the requestor’s right to intervene to contest the withholding.

§ 552.325(c).The Attorney General shall notify the requestor: (1) in the manner required by the Texas Rules of Civil Procedure, if the requestor has intervened in the suit; or (2) by certified mail or by another written method of notice that requires the return of a receipt, if the requestor has not intervened in the suit. Id.

2. Availability of an ombudsman

3. Commission or agency enforcement

Section 552.009 establishes an open records steering committee that shall study and determine the types of public info that should be made available by the Internet or other electronic means. State governmental bodies shall report to the attorney general information regarding the number and nature of requests for information they process, the cost of processing such requests and of making information available to the public by means of the Internet or another electronic format. Tex. Gov’t Code § 552.010.
A requestor who believes he or she has been overcharged may lodge a complaint with the Office of the Attorney General. Tex. Gov’t Code § 552.269.

F. Are there sanctions for noncompliance?

In an action brought under Section 552.321 or 552.3215, the court “shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails.” § 552.323(a). However, a court may not assess costs and fees against a governmental body if the court finds that the governmental body acted in reasonable reliance on a judgment or court order, an appellate court decision, or a written decision of the Attorney General. Tex. Gov’t Code § 552.323. In determining awardable costs and attorney fees under § 552.324 (in a suit brought by a governmental body seeking to withhold information), the court must consider whether the conduct of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith. Tex. Gov’t Code § 552.323(b).
Section 552.351 provides that a person commits a criminal offense if the person willfully destroys, mutilates, removes without permission, or alters public information. Such an offense is a misdemeanor punishable by a fine of not less than $25 or more than $4,000, or confinement in jail for not less than three days or more than three months, or both. Tex. Gov’t Code § 552.351(b).
An officer of public information or the officer’s agent commits a crime if, with criminal negligence, that person fails or refuses to give access to, or to permit or provide copying of, public information to a requestor. Tex. Gov’t Code § 552.353(a). Such a violation is a misdemeanor punishable by a fine of not more than $1,000, or confinement in jail for not more than six months, or both. Tex. Gov’t Code § 552.353(e).

G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

3. Records retention requirements

The Act authorizes a governmental body to “determine a time for which information that is not currently in use will be preserved, subject to any applicable rule or law governing the destruction and other disposition of state and local government records or public information.” § 552.004.

4. Provisions for broad, vague, or burdensome requests

II. Exemptions and other legal limitations

A. Exemptions in the open records statute

The Act “does not authorize the withholding of public information or limit the availability of public information to the public, except as expressly provided” by the Act. Tex. Gov’t Code § 552.006. The Act lists more than 50 categories of exceptions. Tex. Gov’t Code §§ 552.101 et seq. Seemingly, more exceptions are added every two years during regular sessions of the legislation.

However, these exceptions do not apply to certain categories of information explicitly deemed public in Section 552.022(a), and such information must be disclosed unless it is “expressly confidential under other law.” § 552.022(a); In re City of Georgetown, 53 S.W.3d 328, 331 (Tex. 2001) (holding that the Texas Rules of Evidence and Rules of Civil Procedure are “other law” that may render information described in Section 552.022(a) confidential and not subject to mandatory disclosure). The categories of information set forth in Section 552.022(a) are:

1. a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108;

2. the name, sex, ethnicity, salary, title, and dates of employment of each employee and officer of a governmental body;

3. information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body;

4. the name of each official and the final record of voting on all proceedings in a governmental body;

5. all working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body, on completion of the estimate;

6. the name, place of business, and the name of the municipality to which local sales and use taxes are credited, if any, for the named person, of a person reporting or paying sales and use taxes under Chapter 151, Tax Code;

7. a description of an agency’s central and field organizations, including:

(A) the established places at which the public may obtain information, submit information or requests, or obtain decisions;

(B) the employees from whom the public may obtain information, submit information or requests, or obtain decisions;

(C) in the case of a uniformed service, the members from whom the public may obtain information, submit information or requests, or obtain decisions; and

(D) the methods by which the public may obtain information, submit information or requests, or obtain decisions;

8. a statement of the general course and method by which an agency’s functions are channeled and determined, including the nature and requirements of all formal and informal policies and procedures;

9. a rule of procedure, a description of forms available or the places at which forms may be obtained, and instructions relating to the scope and content of all papers, reports, or examinations;

10. a substantive rule of general applicability adopted or issued by an agency as authorized by law, and a statement of general policy or interpretation of general applicability formulated and adopted by an agency;

11. each amendment, revision, or repeal of information described by Subdivisions (7)-(10);

12. final opinions, including concurring and dissenting opinions, and orders issued in the adjudication of cases;

13. a policy statement or interpretation that has been adopted or issued by an agency;

14. administrative staff manuals and instructions to staff that affect a member of the public;

15. information regarded as open to the public under an agency’s policies;

16. information that is in a bill for attorney’s fees and that is not privileged under the attorney-client privilege;

1. Character of exemptions

A governmental body that believes requested records are exempt must specifically identify in a letter to the Attorney General which of the categories of exceptions it believes exempts the requested information and why. See Tex. Gov’t Code § 552.301. Ordinarily the Attorney General will not raise an exception the governmental body has failed to claim unless the information involves confidential information about third parties that might be exempt under Section 552.101. See Tex. Att’y Gen. ORD-455 (1987); Tex. Att’y Gen. ORD-325 (1982). In the event the governmental body’s refusal to disclose information results in a lawsuit, the governmental body can only raise in that suit exceptions that were raised before the Attorney General. Tex. Gov’t Code § 552.326. However, this does not prohibit the governmental body from raising an exception based on a requirement of federal law or involving the property or privacy interests of another person.

The Act does not require a governmental body to withhold all information that falls within these exempt categories. A governmental body can release exempt information, unless such information is considered “confidential” under the terms of the Act or by some other law or judicial decision. See Tex. Gov’t Code §§ 552.101, 552.352, 552.007. However, once the governmental body has released information, that information must be made available to any person. Id. at § 552.007(b). The waiver of the exception resulting from a governmental body’s disclosure of documents extends only to the documents released, and not with respect to related documents. Cornyn v. City of Garland, 994 S.W.2d 258, 265-66 (Tex. App.—Austin 1999, no pet.).

The legislature modeled the Act after the federal Freedom of Information Act. Texas Comptroller of Public Accounts v. Attorney General of Texas, No. 08-0172, 2010 WL 4910163, at *8 (Tex. 2010); A & T Consultants, Inc., 904 S.W.2d at 676. Courts may look to the federal courts’ construction of the Freedom of Information Act for guidance in interpreting the Texas Public Information Act. Texas Comptroller of Public Accounts, 2010 WL 4910163, at *5 (“[b]ecause the PIA is modeled on the FOIA, federal precedent is persuasive, particularly where the statutory provisions mirror one another”); City of Garland v. Dallas Morning News, 22 S.W.3d 351, 360 (Tex. 2000).

2. Discussion of each exemption

A governmental body raising any of the exceptions has the burden of establishing that the records at issue fall within the exception. York v. Tex. Guaranteed Student Loan Corp., 408 S.W.3d 677, 688 (Tex. App.—Austin 2013). The Act supports a liberal construction of its provisions in favor of disclosure and narrow interpretation of its exceptions to disclosure. Simmons v. Kuzmich, 166 S.W.3d 342, 346 (Tex. 2005). Determining whether an exception applies under the Act to support withholding public information is a question of law. Abbott v. Texas Bd. of Nursing, No. 03-09-00154-CV, 2010 WL 392335, at *1 (Tex. App.—Austin 2010, no pet.) (mem. op.).

(§ 552.101): Information deemed confidential by constitutional law, statute, or judicial decision. This includes common-law privacy. Indus. Found. of the South, 540 S.W.2d at 683 (information is confidential only if “the information contain[s] highly intimate or embarrassing facts about a person’s private affairs, such that its publication would be highly objectionable to a person of ordinary sensibilities.”) The Austin court of appeals relied on and notably extended the ruling from Tex. Comptroller of Pub. Accounts, 354 S.W.3d at 336, to hold that the dates-of-birth of members of the general public contained in records of a governmental body are excepted from disclosure under the Act under common law privacy. See Paxton v. City of Dallas, 2015 WL 3394061 (Tex. App.—Austin 2015, pet. denied).

(§ 552.102) information in (1) the personnel file of a state employee the disclosure of which would constitute a clearly unwarranted invasion of personal privacy or (2) the college or graduate school transcript of a professional public school employee. The college transcript exception does not exempt information as to what degree the public school employee received or in which curriculum. Personnel files may become public record upon the death of the individual since the right of privacy dies with the individual. Tex. Att’y Gen. Op. No. H-917 (1976). The Texas Supreme Court ruled that Section 552.102 requires a balancing of interests between privacy and disclosure as found in federal FOIA Exemption 6. Application of the FOIA Exemption 6 balancing test in the context of a request for disclosure of dates-of-birth of public employees resulted in the holding that DOBs of state employees are excepted from public disclosure. Tex. Comptroller of Pub. Accounts, 354 S.W.3d at 347–48. In civil cases against a police or fire department, material placed in the department’s discretionary personnel file is generally privileged from disclosure. In re Jobe, 42 S.W.3d 174, 180 (Tex. App.—Amarillo 2001, no pet.); Tex. Loc. Gov’t Code. § 143.089(a)-(g). Material deemed to be “reasonably related to a police officer’s or fire fighter’s employment relationship” is also privileged. City of San Antonio v. San Antonio Express News, 47 S.W.3d 556, 563 (Tex. App.—San Antonio 2000, pet. denied). However, documents leading to disciplinary action against a fire fighter or police officer must be included in a discoverable file if the document is from the employing department. In re Jobe, 42 S.W.3d at 180; Tex. Loc. Gov’t Code § 143.089(a)(2).

(§ 552.103) certain information concerning criminal or civil litigation (including settlement negotiations) in which the governmental body is or may be a party, or to which an officer or employee of the state or a political subdivision, as a consequence of such employment, is or may be a party. [This exception applies when the information relates to litigation that is pending or is reasonably anticipated. Univ. of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481-82 (Tex. App.—Austin 1997, no writ) (applying exception where requestor-attorney stated intent to use requested information to solicit class-action plaintiffs). To claim that information falls within this exception, the governmental body must also show that the requested information related to the litigation is such that release of the information would injure the governmental body’s legal strategy and interests. Tex. Att’y Gen. ORD-478 (1987). It is sometimes difficult to demonstrate that litigation is “reasonably anticipated.” A mere threat of a lawsuit is not enough. Tex. Att’y Gen. ORD-331 (1982). Once litigation has concluded, however, this section does not provide an exception and information must be provided unless it constitutes attorney work product which consists of information created for trial or in anticipation of civil litigation or that would tend to reveal an attorney’s mental processes, conclusions and legal theories. Tex. Att’y Gen. ORD-647 (1996).];

(§ 552.104) information that would give advantage to competitors or bidders. The Texas Supreme Court greatly expanded application of this exception in Boeing Co v. Paxton, 466 S.W.3d 831 (Tex. 2015), holding that the “test under Section 552.104 is whether knowing another bidder’s [information] would be an advantage, not whether it would be a decisive advantage.” Id. at 841. The court also held that Section 552.104 is not limited to governmental bodies, and that private third parties may therefore invoke the exception. Id. at 842.

(§ 552.105) information concerning the location of real or personal property for public purposes before public announcement of the project as well as information concerning appraisals or purchase prices of real or personal property before formal award of a contract for the property. Tex. Att’y Gen. ORD-222 (1979); Tex. Att’y Gen. ORD-234 (1980) (stating that “[s]o long as negotiations regarding the purchase of a site. . . have not been completed . . . the city may withhold all proposed plans, locations and cost estimates” but when “the transaction has been completed, all factual information relating to the project will become available to the public.”); Tex. Att’y Gen. ORD-348 (1982). This exception can apply to the names and addresses of landowners as release of such information could affect the purchase negotiations. See Heidenheimer v. Tex. Dept. of Transp., No. 03-02-00187-CV, 2003 WL 124248, at *2 (Tex. App.—Austin 2003, pet. denied).

(§ 552.106) drafts or working papers involved in the preparation of proposed legislation and internal bill analyses and working papers evaluating proposed legislation prepared by the governor’s office. A city manager’s proposed budget prior to its presentation to the city council may be excepted. Tex. Att’y Gen. ORD-460 (1987). However, a state agency’s factual findings on the value of school districts’ taxable property is not excepted because it is a factual inquiry rather than one that reflects “policy judgments, recommendations, or proposals” concerning the drafting of legislation. Tex. Att’y Gen. ORD-344 (1982). Section 552.106 also exempts from disclosure internal bill analyses or working papers prepared by the governor’s office for the purpose of evaluating proposed legislation. See Tex. Att’y Gen. ORD-138 (2005) (Office of the Lieutenant Governor could withhold information constituting a comparison or analysis of factual information prepared to support proposed legislation); but see Tex. Att’y Gen. ORD-6367 (2011) (Section 552.106 did not apply where the Dallas County Commissioner’s Court failed to demonstrate that the information constituted an internal bill analysis or working paper prepared by the governor’s office for the purpose of evaluating proposed legislation).

(§ 552.107) information protected from disclosure by court order or which the Attorney General or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Evidence, the Texas Disciplinary Rules of Professional Conduct, or by a court order. This exception basically addresses information protected by attorney-client privilege. Tex. Att’y Gen. ORD-323 (1982); Tex. Att’y Gen. ORD-462 (1987); see Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328, 333 (Tex. App.—Austin 2000, no pet.) (holding that the attorney-client privilege prohibited disclosure of an attorney’s entire report-including the purely factual portion-made to her client, a school district). The exception also applies when there is a court order prohibiting disclosure. Tex. Att’y Gen. ORD-309 (1982); Tex. Att’y Gen. ORD-415 (1984). However, a court may not order withholding of any information listed in § 552-022 unless it is confidential under The Act or other law.

(§ 552.108) records of law enforcement agencies and prosecutors dealing with detection, investigation, or prosecution of crime. Information is excepted from disclosure if (1) its release would interfere with the detection, investigation, or prosecution of a crime; (2) it deals with the detection, investigation, or prosecution of a crime only in relation to an investigation that did not result in conviction or deferred adjudication; (3) it relates to a threat against a peace officer or corrections officer; or (4) it was prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation or reflects the mental impressions or legal reasoning of an attorney representing the state. Information may be withheld under this section even in cases where a criminal investigation does not result in conviction or deferred adjudication. However, “basic information about an arrested person, an arrest, or a crime is” not excepted from disclosure (§ 552.108(c)). Although the law enforcement exception is interpreted broadly, in 2013 the Act was amended to allow news media access to “sensitive crime scene” photos held by law enforcement. Tex. Gov’t Code. § 552.1085(d).

Article 57.02 of the Texas Code of Criminal Procedure allows victims of sex crimes to use pseudonyms in all public records concerning the offense, including in policy reports, press releases, and during testimony in court. Under this law, law enforcement officials cannot disclose the victim’s name, address or telephone number unless ordered to do so by a court.

In order to secure the protection of this exception, the governmental body must demonstrate that release of the requested information will unduly interfere with law enforcement and crime prevention. City of San Antonio v. San Antonio Express News, 47 S.W.3d 556, 563 (Tex. App.—San Antonio 2000, pet. denied). Information relating to a pending criminal investigation or prosecution is one example of information that is excepted under sections 552.108(a)(1) and 552.108(b)(1) because release of such information would presumptively interfere with the detection, investigation, or prosecution of crime. See Houston Chronicle Publ’g Co. v. City of Houston, 531 S.W.2d 177, 184–85 (Tex. Civ. App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.).

(§ 552.109) private correspondence or communications of an elected office holder relating to matters the disclosure of which would constitute an invasion of privacy. Letters from students’ parents concerning a teacher’s performance sent to school board trustees were not shielded from disclosure since nothing in the contents violated the privacy rights of the trustees as long as information which identifies students or parents is redacted. Tex. Att’y Gen. ORD-332 (1983).

In determining whether information is exempt from disclosure under this exception, the Attorney General relies on the common-law privacy test. See Tex. Att’y Gen. GA-3538 (2005). Common-law privacy protects information if (1) the information contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. See id. (citing Indus. Found. of the South v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976)). The type of information that might be considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Indus. Found., 540 S.W.2d at 683.

Exemption under Section 552.109 applies only to correspondence sent out by the elected official, not to correspondence that is received by the official. In addition, this exemption only protects the privacy interests of the public official. See Tex. Att’y Gen. ORD-473 (1987). It does not protect the privacy interests of the person discussed in the communication or the privacy of the recipient of the communication. See Tex. Att’y Gen. ORD-332 (1982). Exempt correspondence includes handwritten notes on a personal calendar, even if made by the elected official’s assistant. See Tex. Att’y Gen. ORD-145 (1976). However, when a travel itinerary is prepared, it is available for public inspection.

Non-exempt information includes correspondence of the governor regarding potential nominees for public office. This material is not protected by a constitutional right of privacy or a common-law right of privacy when it does not contain highly embarrassing or intimate facts and there is a legitimate public interest in the appointment process. See Tex. Att’y Gen. ORD-241 (1980).

(§ 552.110) trade secret or commercial or financial information obtained from a person and privileged or confidential by statute or judicial decision. Also excepted is commercial or financial information for which it is demonstrated through specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained. See Tex. Att’y Gen. ORD-592 (1991) (discussing in detail the meaning of “trade secrets”).

(§ 552.111) interagency or intraagency memoranda or letters that would not be available by law to a party in litigation with the agency. This exception exempts from public disclosure information that is not discoverable in a lawsuit. See Tex. Att’y Gen. Op. No. H-436 (1974); Tex. Att’y Gen. ORD-251 (1980). It is patterned after Section 552(b)(5) of the federal Freedom of Information Act, 5 U.S.C. § 552(b)(5), and exempts advice, opinion, and recommendation used in the deliberative and decision-making processes within an agency or between agencies, to encourage open and frank discussion. Id.; but see Lett v. Klein Indep. Sch. Dist., 917 S.W.2d 455, 457 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (holding that documents relating to a student’s conduct grade were not exempt from disclosure as they concerned implementation of current policy and not the deliberative process of policy formation). This is the proper exception under which to claim the attorney work product privilege once litigation for which the information was created has concluded. Tex. Att’y Gen. ORD-647 (1996). The Texas Supreme Court has limited this exception to protect only those agency communications or parts of agency communications that relate to the agency’s policymaking. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 364 (Tex. 2000) (holding that a city manager’s memorandum on reasons why to fire a city finance director was not exempt from disclosure since it did not relate to policymaking); Arlington Indep. Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152, 160-61 (Tex. App.—Austin 2001, no pet.) (holding that factual compilations from survey responses are not protected under this exception as they are not pre-decision memoranda related to policymaking). The exception may apply to information created for a governmental body by an outside consultant when the consultant is acting at the request of the governmental body and performing a task within the authority of that body. Tex. Att’y Gen. ORD-631 (1995);

(§ 552.112) information in or related to examining, operating, or condition reports by or for agencies responsible for the regulation or supervision of financial institutions or securities, or both. Records describing the general condition of a particular type of financial institutions are not excepted. Tex. Att’y Gen. ORD-483 (1987);

(§ 552.113) certain geological or geophysical information or data, including maps concerning wells (except information filed in connection with an application or proceeding before an agency), confidential “electric logs” (as defined in the Natural Resources Code), and “confidential material” filed in the General Land Office. Information filed in connection with an application or proceeding before an agency is not excepted. The purpose of this exception is to only protect commercially valuable geological and geophysical information about the exploration and development of natural resources. Tex. Att’y Gen. ORD-627 (1994);

(§ 552.114) student records at educational institutions funded wholly or in part by state revenue. Records that contain information related to an identifiable student are excepted from disclosure except when requested by the student, spouse, parents, legal guardian, certain school personnel, or a person conducting a child abuse investigation as defined in the Family Code. This exception is intended to conform with the federal Family Educational Rights and Privacy Act of 1974. This federal act permits schools to release certain types of “directory information” concerning a student (such as his name, address, telephone number, date and place of birth, and major field of study) if the school has notified the student what the school has designated as “directory” and given the student reasonable time to request that such information not be released without his consent. Tex. Att’y Gen. ORD-634 (1996);

(§ 552.115) birth and death records maintained by the bureau of vital statistics of the Texas Department of Health. However, birth records become public 75 years after they are filed and death records become public 25 years after they are filed. General birth and death indices established and maintained by the Bureau of Vital Statistics are not excepted from disclosure to the extent they do not reveal adoption or paternity determinations;

(§ 552.116) audit working papers of the state auditor, the auditor of a state agency, an institution of higher education as defined in the Education Code, a county, a municipality, or a joint board operating under the Transportation Code;

(§ 552.117) information relating to the home addresses, home telephone numbers, or Social Security numbers of current or former governmental officials and employees, current or former employees of the Texas Department of Criminal Justice, as well as certain peace officers and security officers, or information that reveals whether such persons have family members, except as otherwise provided in § 552.024. Government employees and officials can choose, in writing, whether to allow public access to such information. See Tex. Gov’t Code § 552.024; § 552.1175. The 1995 amendments added exemptions for Social Security numbers and information that reveals whether a person has family members.

(§ 552.1175) information relating to the home address, home telephone number, Social Security number, or information revealing whether the individual has family members may not be revealed and applies to peace officers, county jailers, current of former employees of the Texas Department of Criminal Justice, security officers as defined in the Occupations Code, employees of a district or county attorney, any county or municipal attorney whose jurisdiction includes criminal law or child protective services, officers and employees of a community supervision and corrections department established under the Code, criminal investigators of the United States, and police officers and inspectors of the United States Federal Protective Service.

(§ 552.1176) information relating to the home address, home telephone number, electronic mail address, social security number, or date of birth of a person licensed to practice law in Texas may not be disclosed if the person to whom the information relates chooses to restrict public access to the information and notifies the State Bar of Texas of the person’s choice, in writing or electronically, on a form provided by the state bar.

(§ 552.118) information on or derived from a triplicate prescription form filed with the Department of Public Safety;

(§ 552.119) photographs that depict certain peace officers or security officers where release would endanger their lives or physical safety unless the officer is under indictment or charged with an offense by information, is a party in a civil service hearing or a case in arbitration, or the photograph is introduced as evidence in a judicial proceeding. Such photographs may be made public only if written consent is provided by the peace officer. [The 1993 amendments broadened this exemption to include the phrase “physical safety.” The exemption ceases to apply after the death of the officer. Tex. Att’y Gen. ORD-536 (1989).];

(§ 552.120) rare books or original manuscripts not created or maintained in the conduct of official business and held for historical research;

(§ 552.121) oral histories, personal papers, unpublished letters, or organizational records of certain nongovernmental entities that was not created or maintained in the conduct of official business of a governmental body and that are held for historical purposes to the extent that the archival and repository and the donor agree to limit disclosure;

(§ 552.122) test items of educational institutions funded wholly or in part by state revenues and test items developed by licensing agencies or governmental bodies. [The term “test item” includes any standard means through which an individual or group’s knowledge or ability is evaluated but does not encompass an employee’s job performance or suitability. Tex. Att’y Gen. ORD-626 (1994). Determinations are made on a case by case basis. See id. The 1995 amendments deleted curriculum objectives from exempt status.];

(§ 552.123) the names of applicants for chief executive officer of institutions of higher education, except that the governing bodies of these institutions must give the public notice of the names of finalists at least 21 days before the meeting at which final action or vote is to be taken on the employment of the person;

(§ 552.1235) the name or other information disclosing the identity of a person who makes a donation or gift to an institution of higher learning. This section does not exempt other information relating to the amount or value of a gift or donation;

(§ 552.124) records of libraries or library systems, supported in whole or in part by public funds, that identify a person who requested, obtained, or used a library material or service, unless the record is disclosed: (1) because the library or library system determines that disclosure is reasonably necessary for library operation and the record is not confidential under other state or federal law, or (2) pursuant to a special right of access of confidential information under § 552.023, or (3) to a law enforcement agency or prosecutor pursuant to a court order or subpoena after a showing to a district court that disclosure of the record is necessary to protect the public safety or the record is evidence of an offense or constitutes evidence that a particular person committed an offense.

(§ 552.126) the names of applicants for superintendent of a public school district, except that the board of trustees must give the public notice of the names of finalists at least 21 days before meeting at which final action or vote is to be taken on the employment of the person;

(§ 552.127) information identifying a person as a participant in a neighborhood crime watch organization;

(§ 552.128) information submitted by a potential vendor or contractor to a governmental body in connection with an application for certification as a historically under-utilized or disadvantaged business;

(§ 552.129) records created during a motor vehicle emissions inspection that relate to an individual vehicle or owner of an individual vehicle;

(§ 552.130) a motor vehicle operator’s or driver’s license or permit issued by a Texas agency, a motor vehicle title or registration issued by a Texas agency, or a personal identification document issued by a Texas agency or local agency authorized to issue an identification document. Information may only be released as authorized by Chapter 730 of the Transportation Code;

(§ 552.131) information relating to economic development negotiations involving a governmental body and a business prospect that the government seeks to have locate, stay, or expand in or near the territory of the governmental body and the information pertains to a trade secret of the business prospect, or commercial or financial information the disclosure of which would cause substantial harm to the individual from whom the information was obtained. However, after an agreement is made with the business prospect, information about a financial or other incentive being offered to the business prospect by the governmental body or by another person, if the financial or other incentive may directly or indirectly result in the expenditure of public funds by a governmental body or a reduction in revenue received by a governmental body from any source, is subject to the Act.

(§ 552.132) a crime victim as defined by the Code of Criminal Procedure who has filed for compensation may elect to allow access to information revealing the name, Social Security number, or telephone number of the victim (however, if the crime victim is awarded compensation, as of the date of the award of compensation, the name of the crime victim and the amount of compensation awarded are public information);

(§ 552.1325) information relating to a crime victim’s name, Social Security number, address, home telephone number, or any other information which may identify the victim contained in the victim’s impact statement as defined by the Code of Criminal Procedure;

(§ 552.133) information relating to the public power utility’s competitive activity that if disclosed would give advantage to competitors or prospective competitors. Certain information such as that relating to the provision of distribution access service or transmission service, the distribution system pertaining to reliability and continuity of service, or service offerings, service regulations, customer protections, or customer service;

(§ 552.134) information maintained by the Texas Department of Criminal Justice pertaining to an inmate. Exception does not apply to an inmate sentenced to death or statistical or other aggregated information relating to inmates confined in a facility operated or under contract with the department;

(§ 552.135) information that might reveal the identity of an informant who revealed information of another person’s possible violation of criminal, civil, or regulatory law to the school district unless the informant gives consent or the informer planned, initiated, or participated in the possible violation;

(§ 552.136) information relating to a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential. “Access device” is defined as any instrument or means of account access that can be used to obtain money, goods, or services, or initiate a transfer of funds;

(§ 552.137) e-mail addresses of members of the public provided for the purpose of communicating electronically with a governmental body is excepted from disclosure, unless the member of the public consents to its release. E-mail addresses not excepted include those from a person who has a contractual relationship with a governmental body, a vendor who seeks to contract with the agency, a response to a request for bids or proposals, or on letterhead or other document made available to the public;

(§ 552.138) information revealing the identity of clients, private donors, trustees, and board members, or the location or physical layout of family violence shelter centers and sexual assault programs are all excepted from disclosure;

(§ 552.139) information relating to computer network security or to the design, operation, or defense of a computer network;

(§ 552.140) military discharge records are confidential for the first 75 years following the date a record is recorded with or first comes into the possession of a governmental body. During that time, the veteran who is the subject of the record, the spouse, child, legal guardian, or parent of the veteran, the personal representative of the estate of the veteran, a person named by the veteran, or another governmental body may view the record by presenting proper identification;

(§ 552.141) information relating to the Social Security number of an applicant for a marriage license maintained by a county clerk and on an application for a marriage license;

(§ 552.142) information subject to an order of nondisclosure with respect to information issued under a deferred adjudication;

(§ 552.1425) information relating to criminal histories compiled by private entities for compensation subject to an order of non-disclosure;

(§ 552.143) information prepared or provided by a private investment fund, held by a government body, and not listed in Section 552.0225(b);

(§ 552.144) the working papers and electronic communications of an administrative law judge;

((§ 552.145) a Texas no-call list as established in the Business and Commerce Code and any information received from the national no-call registry as established under federal law;

(§ 552.146) written or otherwise recorded communications between a member of the legislature or the lieutenant governor and an assistant or an employee of the Legislative Budget Board. Record or memoranda of a communication occurring in public during an open meeting or public hearing conducted by the Legislative Budget Board is not exempt;

(§ 552.147) the Social Security number of a living person may be redacted from any information disclosed by a government body;

(§ 552.148) the name, address, telephone number, and social security number of a minor participating in a recreational program or activity, as well as photographs and the name of the minor’s parent or legal guardian;

(§ 552.149) certain records of a Comptroller or Appraisal District identified under Chapter 6 of the Tax Code;

(§552.150) information that could compromise the safety of officers or employees of a hospital district;

(§ 552.151) certain information pertaining to biological agents or toxins identified or listed as a select agent under federal law;

(§552.158) personal information obtained by the governor or senate in connection with an application for appointment by the governor, including: the applicant’s home address, telephone number, and social security number.

B. Other statutory exclusions

In 1995, the Texas legislature added two other “exclusions:” requests from individuals who are imprisoned or confined in a correctional facility; and copies of information in resource materials made available to the public, such as library books, and inspection and copying of information in books or publications commercially available to the public that are purchased or acquired by the governmental body for research purposes. Tex. Gov’t Code §§ 552.027-.028. However, a governmental body must allow the inspection of such information if it is part of or referred to in a rule or policy of a governmental body. Tex. Gov’t Code § 552.027(c).
In 1999, the Texas legislature further limited a governmental body’s obligation to disclose information so as to not require disclosure of information in response to repetitious or redundant requests although the governmental body must certify to the requestor that all or part of the requested information was previously furnished to the requestor or made available. Tex. Gov’t Code § 552.232(b).

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

Since Section 552.101 excepts from public disclosure information deemed confidential by constitutional and statutory law and judicial decisions, federal and state court opinions describing the limits of the constitutional and common law “right of privacy” can affect application of the Texas Public Information Act. See Indus. Found. of the South., 540 S.W.2d 668 (Tex. 1976) and Doe v. Tarrant Cty. Dist. Attorney’s Office, 269 S.W.3d 147 (Tex. App.—Fort Worth 2008, no pet.). See Tex. Dep’t of Public Safety vs. Cox Newspapers, Inc., 287 S.W.3d 390, 398 (Tex. App.—Austin 2009, rev’d) (DPS failed to establish that the information contained in the travel expense vouchers of the governor’s security detail were not excepted under either a common-law right of privacy or a constitutional right of privacy). In addition, since Section 552.101 exempts information deemed confidential by constitutional law, statute, or judicial decision, the legislature can indirectly create other exceptions to the Texas Public Information Act without specifically amending that Act.

D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

Autopsy reports are subject to required public disclosure unless one of the Act’s exceptions applies. Tex. Att’y Gen. ORD-7790 (2004). However, the release of a “provisional autopsy report” prepared in connection with a request by a justice of the peace is not required to be released but may be made available for inspection by the public. Tex. Atty. Gen. Op. JC-0422 (2001).

A completed report, audit, evaluation, or investigation made of, for, or by a governmental body is public information unless it qualifies as information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime where the release of the information would interfere with the detection, investigation, or prosecution of crime, pursuant to Section 552.108. Tex. Gov’t Code. §552.022.

A city inspection report on nursing homes is public unless prepared solely in connection with state licensing for and on behalf of the State Department of Health Resources on their forms and according to their standards. Tex. Atty. Gen. Op. No. ORD-138 (1976). Documents relating to inspection reports on amusement rides at the state fair are not excepted from disclosure under statute. Tex. Atty. Gen. ORD-404 (1984).

C. Bank records

Banks and similar financial institutions usually are not considered “governmental bodies,” so their records generally are not subject to the Act. Tex. Att’y Gen. ORD-1 (1973). The exception further protects from public disclosure some of the information generated by governmental bodies during their regulation and supervision of financial institutions. See Tex. Gov’t Code § 552.112(c) (stating that statistical or demographic information submitted to the Texas Legislative Council or to any state agency overseen by The Finance Commission of Texas is exempt from disclosure); Tex. Att’y Gen. ORD-446 (1986) (stating that reports pertaining to the financial condition of a credit union not otherwise intended for publication are exempt from disclosure).

However, some information on financial institutions has been made public under the Act or under other Texas laws. For example, information provided by banks to the local tax assessor-collector regarding the identity and address of bank stockholders, as well as the size and value of their stockholdings, was found to be specifically public under state tax laws. Tex. Att’y Gen. ORD-39 (1974). Likewise, while the Texas Savings and Loan Department’s investigative reports and orders regarding a particular savings and loan institution were found to be exempt from public disclosure under a specific provision of the Texas Savings and Loan Act, the public was entitled to the department’s general report concerning the conditions of the industry where a particular savings and loan was not identified. Tex. Att’y Gen. ORD-483 (1987). Insurance companies have been held not to be “financial institutions” for purposes of establishing this particular exception to disclosure. Birnbaum v. Alliance of Am. Insurers., 994 S.W.2d 766, 772-73 (Tex. App. ––Austin 1999, pet denied) (abrogated on other grounds by In re Bass, 113 S.W.3d 735 (Tex. 2003)).

D. Budgets

E. Business records, financial data, trade secrets

Commercial or financial information for which it is demonstrated through specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained is not subject to disclosure. See Tex. Gov’t Code 552.110.

In addition to budgets, a governmental bank account records, and canceled checks are public. Tex. Att’y Gen. ORD-52 (1974); Tex. Att’y Gen. ORD-7 (1973). Tax records can provide additional public information about businesses. For example, a taxpayer’s name, place of business, and name of the city to which local sales taxes and use taxes are credited are not exempt from public disclosure. Tex. Gov’t Code § 552.022(a)(6). However, the amount of gross sales taxes is confidential under a specific taxation provision. Tex. Att’y Gen. ORD-17 (1974). A school district tax assessor’s rendition book is public. Tex. Att’y Gen. ORD-76 (1975). Although some Tax Code provisions make certain types of tax information confidential, “[t]ax information is not, per se, confidential.” Tex. Att’y Gen. ORD-568 (1990). The Texas Attorney General at least once rejected an argument that a constitutional right of privacy exists concerning financial affairs. Tex. Att’y Gen. Op. No. H-258 (1974). In A & T Consultants Inc. v. Sharp, the Texas Supreme Court granted mandamus relief compelling disclosure of certain information regarding the state’s franchise taxpayers in the possession of the state comptroller. 904 S.W.2d at 668 (holding that information revealing why certain entities were selected for auditing and methods of auditors was exempt from disclosure while other data from completed audits was subject to disclosure). This information included corporate charters, certificates and degrees of dissolution, and facts from completed audits. However, the Court did not compel the comptroller to disclose the reasons for which audits were conducted, the choice of an audit method, taxpayers’ responses to an audit, codes assigned to each audit, or the amounts of deficiencies or refunds. Id. at 679-81.

While trade secrets themselves are specifically excepted, information concerning whether a required public filing of trade secret information has been made is public information. Tex. Gov’t Code.§ 552.110; Tex. Att’y Gen. ORD-89 (1975). Determination of whether particular information is a trade secret is a fact question. Tex. Att’y Gen. ORD-609 (1992). Following the holding in Hyde Corp., v. Huffines, 314 S.W.2d 763 (Tex. 1958), cert. denied, 358 U.S. 898 (1958), the Attorney General has relied on the trade secrets definition in the Restatement of Torts, Section 757, comment b (1939).Tex. Att’y Gen. ORD-609 (1992). This definition considers six factors: (1) the extent to which the information is known outside the company; (2) the extent to which it is known by employees and others in the company; (3) the extent of company measures to guard the information’s secrecy; (4) the information’s value to the company and its competitors; (5) the effort and money spent developing the information; and (6) the ease or difficulty to properly acquire or duplicate the information. Id. For example, the volume and location of chemicals used by semiconductor manufacturers may be trade secrets protected from public disclosure, but the identity of chemicals commonly used in the business is not. Tex. Att’y Gen. ORD-554 (1990). Even if records are not protected as trade secrets, copying of some records may be protected under federal copyright law. Tex. Att’y Gen. ORD-550 (1990).

F. Contracts, proposals and bids

All contracts dealing with the receipt or expenditure of a governmental body’s funds are specifically made public unless otherwise made confidential by law. Tex. Gov’t Code § 552.022(a)(3). However, information relating to competition or bidding, even that consisting of a contract with a government body, may be subject to withholding under § 552.104. See Boeing Co., 466 S.W.3d at 842. Further, one section of a proposal to furnish services was found to be an exempt trade secret even though the company making the proposal ultimately received the contract. Tex. Att’y Gen. ORD-305 (1982). The names of individuals or companies who wish to be informed of the opportunity to bid is public although the list of actual bidders (before the last day of bidding) can be exempt from disclosure. Tex. Att’y Gen. ORD-453 (1986). Upon completion of the bidding and award of the contract, the bids are public. Tex. Att’y Gen. ORD-184 (1978). Because Section 552.104 applies only when release of information would cause specific harm to a governmental body “in a particular competitive situation . . . [this exception] does not apply after bidding is over and the contract has been awarded.” Tex. Att’y Gen. ORD-509 (1988). Certain “trade secret” information in bid proposals, however, may remain exempt. Id. For example, a financial statement submitted by a bidder may be exempt under Section 552.110. Tex. Att’y Gen. Op. No. GA-10830 (2005).

G. Collective bargaining records

H. Economic development records

All working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body, on completion of the estimate are explicitly made public unless made confidential by other law. Tex. Gov’t Code. § 552.022(a)(5).

I. Election Records

Texas election laws provide that, once the polls for a particular election are closed, a list of registered voters who cast ballots is public. Tex. Att’y Gen. ORD-38 (1974). Further, nominating petitions for primary elections in the custody of political parties are available for public inspection under the Open Records Act. (1980) Tex. Atty. Gen. Op., No. MW-175.

Applications to register to vote that are on file with a county registrar constitute public information. Nixon v. Slagle, 885 S.W.2d 658, 661 (Tex. App.—Tyler 1994, no writ).

Voted ballots from a primary election become public records available for inspection after a 22-month retention period required by state law, but public copying of the computer programs used to tabulate the votes would violate federal copyright law. Tex. Att’y Gen. ORD-505 (1988).

J. Emergency Medical Services records

Texas Health & Safety Code § 773.091 makes records created and maintained by EMS personnel confidential, and exempt from disclosure under Section 552.101 of the Act, except for information regarding “the presence, nature of injury or illness, age, sex, occupation, and city of residence of a patient who is receiving emergency medical services.” See also Tex. Att’y Gen. OR2017-28782.

K. Gun permits

Information on individuals licensed to carry concealed handguns is confidential and not subject to requests under the Act. See Tex. Gov’t Code § 411.192. The Department of Public Safety may, however, release information about licensees to law enforcement agencies. See id.

L. Homeland security and anti-terrorism measures

Section 552.101 of the Government Code exempts from disclosure “information considered to be confidential by law, either constitutional, statutory, or by judicial decision.” Tex. Att’y Gen. OR2011-05009 (2011). This section encompasses information protected by other statutes including the Texas Homeland Security Act. Id.

The Texas Homeland Security Act added Sections 418.176 through 418.182 to chapter 418 of the Government Code. These provisions make certain information related to terrorism confidential. However, the fact that information may relate to a governmental body’s security measures does not make the information per se confidential. Tex. Att’y Gen. OR2011-05009 (2011); see Tex. Att’y Gen. ORD-649 (1996) (ruling that language of confidentiality provision controls scope of its protection). Furthermore, the mere recitation of the statute’s key terms is not sufficient to demonstrate the applicability of the claimed provision. Id. As with any exception to disclosure, a claim must be accompanied by an adequate explanation of how the responsive records fall within the scope of the claimed provision. Id. (citing Tex. Gov’t Code § 552.301(e)(1)(A) (stating that a governmental body must explain how claimed exception to disclosure applies)).

Under Section 418.181, documents or portions of documents in the possession of a governmental entity are confidential if they identify the technical details of particular vulnerabilities of critical infrastructure to an act of terrorism.

Under Section 418.176, information is confidential if the information is collected, assembled, or maintained by or for a governmental entity for the purpose of preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity and (1) relates to the staffing requirements of an emergency response provider; (2) relates to a tactical plan of the provider; or (3) consists of a list or compilation of pager or telephone numbers, including mobile and cellular telephone numbers, of the provider. Nurses licensed by the Texas Board of Nursing are not included within the meaning of “emergency response provider” and, therefore, the business facsimile numbers of nurses collected and maintained by the Board are not excepted from disclosure pursuant to Section 552.101 of the Act in conjunction with Section 418.176(a). Abbott, 2010 WL 392335, at *6.

Under Section 418.177, information is confidential if it (1) is collected, assembled, or maintained by or for a governmental entity for the purpose of preventing, detecting, or investigating an act of terrorism or related criminal activity; and (2) relates to an assessment by or for a governmental entity, or an assessment that is maintained by a governmental entity, of the risk or vulnerability of persons or property, including critical infrastructure, to an act of terrorism or related criminal activity.

Under Section 418.178, information is confidential if it is information collected, assembled, or maintained by or for a governmental entity and (1) is more than likely to assist in the construction or assembly of an explosive weapon or a chemical, biological, radiological, or nuclear weapon of mass destruction; or (2) indicates the specific location of (A) a chemical, biological agent, toxin, or radioactive material that is more than likely to be used in the construction or assembly of such a weapon; or (B) unpublished information relating to a potential vaccine or to a device that detects biological agents or toxins.

Under Section 418.179, information is confidential if the information (1) is collected, assembled, or maintained by or for a governmental entity for the purpose of preventing, detecting, or investigating an act of terrorism or related criminal activity; and (2) relates to the details of the encryption codes or security keys for a public communications system. Section 418.179 does not prohibit a governmental entity from making available, at cost, to bona fide local news media, for the purpose of monitoring emergency communications of public interest, the communications terminals used in the entity’s trunked communications system that have encryption codes installed.

Under Section 418.180, information, other than financial information, in the possession of a governmental entity is confidential if the information (1) is part of a report to an agency of the United States; (2) relates to an act of terrorism or related criminal activity; and (3) is specifically required to be kept confidential (A) under Section 552.101 because of a federal statute or regulation; (B) to participate in a state-federal information sharing agreement; or (C) to obtain federal funding.

Under Section 418.182, information, including access codes and passwords, in the possession of a governmental entity that relates to the specifications, operating procedures, or location of a security system used to protect public or private property from an act of terrorism or related criminal activity is confidential. However, financial information in the possession of a governmental entity that relates to the expenditure of funds by a governmental entity for a security system is public information that is not exempt from required disclosure under Chapter 552.

Additionally under Section 418.182, information in the possession of a governmental entity that relates to the location of a security camera in a private office at a state agency, including an institution of higher education, as defined by Section 61.003 of the Education Code is public information and is not exempt from required disclosure under Chapter 552 unless the security camera (1) is located in an individual personal residence for which the state provides security; or (2) is in use for surveillance in an active criminal investigation. See Tex. Dep’t. of Pub. Safety v. Abbott, 310 S.W.3d 670, 678 (Tex. App.—Austin 2010, no pet.) (DVDs containing video images recorded by the Texas Capitol’s security system were confidential and excepted from disclosure).

Release of information relating to aviation security is governed by federal law. 49 U.S.C. §§ 114(a), (b)(1), 40119(b)(1); 49 C.F.R. §1520. The Attorney General has decided that requests for that kind of information should be directed to the Under Secretary of Transportation for Security who implements all regulations determining whether to disclose information sought pursuant to the federal Freedom of Information Act. See Tex. Att’y Gen. Op. No. OR 2004-3969 (2004). This includes personnel information of individuals working at airports or other facilities regulated by the United States Transportation Security Administration. Id.

M. Hospital reports

A hospital district’s personnel records stating the name, height, weight, position, and salary of employees are not protected by common law privacy. Tex. Att’y Gen. Op. DM-081 (1994). The accounts receivable of a public hospital-including patient names, amount owed, and when an account became delinquent-are public. Tex. Att’y Gen. ORD-385 (1983).

Several types of health-related records are made confidential by other statutes and therefore are excepted from disclosure under Section 552.101. For example, diagnosis and treatment records, if prepared by or under the supervision of a physician, are confidential. Tex. Occ. Code § 159.002(b). Daily hospital logs that are not prepared by or under the supervision of a physician are not confidential. Tex. Att’y Gen. ORD-487 (1988). Additionally, emergency medical services’ records are excepted from public disclosure if they are created under the delegated authority of a physician. Tex. Att’y Gen. ORD-578 (1990). The records of a “medical peer review committee” of a “healthcare entity” are confidential only when the committee actually evaluates the quality of medical care. Tex. Att’y Gen. ORD-595 (1991) (addressing the records of a “death review committee” of a state mental health and mental retardation residential facility); see alsoTex. Att’y Gen. ORD-591 (1991) (stating that the meeting minutes of a hospital’s “quality management committee” are confidential to encourage frank discussion). Information concerning specific people receiving government funded medical assistance is generally confidential. Tex. Hum. Res. Code §§ 12.003, 21.012; see alsoTex. Att’y Gen. ORD-641 (1996) (stating that information collected under the Americans with Disabilities Act from an applicant or employee concerning that person’s medical condition and medical history is confidential under Section 552.101). HIPAA does not preempt state TPIA. Abbott v. Tex. Dep’t. of Mental Health and Mental Retardation, 212 S.W.3d 648, 664-65 (Tex. App.—Austin 2006, no pet.) (governmental body must determine whether the TPIA compels disclosure or whether the information is excepted from disclosure under the TPIA).

Separate legislation governs the release of records from mental health facilities. Tex. Health & Safety Code § 576.005. Generally, reviews of medical files, correspondence between patients and their parents, correspondence from hospital staff to parents of patients, and notes of visits with parents of patients are excepted as highly intimate or embarrassing facts. Tex. Att’y Gen. ORD-163 (1977). Some detailed medical histories might be exempt in their entirety while other records might be public if the information identifying patients can be deleted. Id.

The Texas Board of Medical Examiner’s licensing file on a particular doctor including the completed application is public. Tex. Att’y Gen. ORD-215 (1978). However, information in the file concerning an applicant’s substance abuse, criminal history, or mental illness is subject to disclosure on a case by case basis. Id. Records of a Department of Health investigation of a home health services agency are confidential. Tex. Health & Safety Code § 142.009(d); see alsoTex. Att’y Gen. ORD-603 (1992).

N. Personnel records

Disclosure of personnel records is limited by Tex. Gov’t Code § 552.102. Other specific disclosure exemptions exist only for the names of applicants for chief executive officer of institutions of higher education and for superintendent of public school districts. Tex. Gov’t Code §§ 552.123-124. Otherwise, the names and resume information about all individuals who apply for employment directly with a governmental body are public. Tex. Att’y Gen. ORD-257 (1980); Tex. Att’y Gen. ORD-264 (1981); Tex. Att’y Gen. ORD-439 (1986). This is true even if the governmental body uses a search committee or a consulting group to find and screen applicants. Tex. Att’y Gen. ORD-439 (1986); Tex. Att’y Gen. ORD-585 (1991); see also Hubert v. Harte-Hanks Tex. Newspapers Inc., 652 S.W.2d 546, 551 (Tex. App.—Austin 1983, writ ref’d n.r.e.). Names of finalists for positions should be made public. See Hubert, 652 S.W.2d at 551 (noting that the public is legitimately concerned with the names and qualifications of candidates for the presidencies of state universities); Tex. Att’y Gen. ORD-439 (1986), overruling Tex. Att’y Gen. ORD-425 (1985) and Tex. Att’y Gen. ORD-273 (1981).

A public employee’s employment history and salary are public as are federally mandated equal employment opportunity reports that contain salary, sex, and ethnicity information. Tex. Att’y Gen. Op. GA-8761 (2005). Generally, information about a public employee’s certification, licenses, educational levels, professional awards and memberships, dates of employment, character references, and prior employment is public. Tex. Att’y Gen. ORD-298 (1981); Tex. Att’y Gen. ORD-329 (1982); Tex. Att’y Gen. ORD-342 (1982); Tex. Att’y Gen. ORD-455 (1987). However, in 1989 the Legislature amended the Act to exempt from public disclosure college transcripts in professional public school employees’ personnel files provided, however, that this section does not exempt from disclosure the degree obtained or the curriculum on a transcript. Tex. Gov’t Code § 552.102(b); see Tex. Att’y Gen. ORD-526 (1989) (applying this exception according to the Legislature’s revision to previous rule). Only transcripts of employees of public schools under Title 2 of the Education Code benefit from this exception — employees of colleges and universities fall under Title 3 of the Education Code. See Open Records Letter Nos. 2002 - 6930 (2002), 2002 - 1827 (2002), 2001 - 2740 (2001), 2000 - 2621 (2000). Information in a worker’s compensation claim file held by or obtained from the Industrial Accident Board is confidential. Tex. Lab. Code § 402.083. However, a public employer’s file on a worker’s compensation claim is public unless otherwise protected by a common law, constitutional, or employee privacy right. Tex. Att’y Gen. ORD-533 (1989). Information about disciplinary actions, dismissals, demotions, or promotions of public employees is public. Tex. Att’y Gen. ORD-444 (1986). Usually, the circumstances of a public employee’s resignation are public. Id.; Tex. Att’y Gen. ORD-278 (1981); Tex. Att’y Gen. ORD-329 (1982).

Civil service departments must maintain a personnel file on all police officers and firefighters. Tex. Loc. Gov’t Code § 143.089. Such files are subject to the Act. Tex. Att’y Gen. ORD-562 (1990). However, the same provision of the Local Government Code allows a police or fire department to keep a confidential, separate personnel file on the same employees. Tex. Loc. Gov’t Code § 143.089(g). This file is excepted from public disclosure “if the information is reasonably related to the firefighter’s or police officer’s employment relationship with the fire or police department.” Tex. Att’y Gen. ORD-562 (1990). Similarly, documents relating to an investigation into a firefighter or police officer’s misconduct can be withheld upon a decision that the allegations of wrongdoing were unfounded. Tex. Att’y Gen. ORD-642 (1996) (citing Tex. Loc. Gov’t Code § 143.1214(b)).

Several of the Act’s exceptions protect public employees’ privacy. Information revealing home addresses, home telephone numbers, and Social Security numbers of current or former governmental officials and employees as well as certain peace officers and security officers is protected. Tex. Gov’t Code § 552.117. Further, information that reveals whether such persons have family members is also exempt from disclosure unless such persons choose to allow public disclosure pursuant to a procedure outlined in the Act. Tex. Gov’t Code §§ 552.117; 552.024. Photographs of peace officers (even in personnel files) generally are not public. Tex. Gov’t Code § 552.119. However, a peace officer’s photograph after he has died is not exempt from disclosure. Id.; Tex. Att’y Gen. ORD-536 (1989). An employee’s W-4 tax form, I.Q. score, psychological testing results, and certain financial records are confidential under a constitutional or common law right of privacy. Tex. Gov’t Code § 552.101; Tex. Att’y Gen. ORD-600 (1992) (discussing in detail a wide variety of personnel records). Personnel evaluations are also exempted. See Tex. Att’y Gen. ORD-600 (1992). However, privacy interests may not protect certain employee accident reports and insurance and benefits information. Tex. Att’y Gen. ORD-600 (1992).

1. Salary

Salary and bonus records information, when public information, are discoverable under the TPIA. The Baytown Sun v. City of Mont Belvieu, 145 S.W.3d 268, 271 (Tex. App.—Houston [14 Dist.] 2004, reh’g overruled) (because the City was entitled to “inspect the books and records” employee salary information constituted public information under the TPIA); Houston Mun. Employees’ Pension System v. Abbott, 192 S.W.3d 862, 866 (Tex. App.—Texarkana 2006, pet. denied) (The Pension Statute specifically states that records in the custody of the pension system about its members are not subject to the TPIA).

2. Disciplinary records

Disciplinary records are generally not exempt from disclosure unless they are confidential under other law or statute. See Tex. Att’y Gen. ORD-470 (1987) (stating public employee’s job performance records do not generally constitute employee’s private affairs and, thus, is subject to disclosure); Tex. Att’y Gen. ORD-455 (1987) (stating that a public employee’s job preferences or abilities are generally not protected by his right to privacy); Tex. Att’y Gen. ORD-423 (1984) (ruling that the release of a public employee’s picture after his arrest for sexual assault is allowed because the public interest outweighs the highly embarrassing nature of the picture).

Disciplinary records of a police officer working in a civil service city which are maintained in the police officer’s civil service file are not exempt. Tex. Loc. Gov’t Code § 143.089.

Records maintained in an internal police department file that reasonably relates to a police officer’s employment relationship with the police department is confidential and must not be released but information not reasonably related to the individual’s employment relationship remains subject to disclosure. Tex. Loc. Gov’t Code § 143.089(g); City of San Antonio v. San Antonio Express News, 47 S.W.3d 556, 563 (Tex. App.—San Antonio 2000, pet. denied); City of San Antonio v. Tex. Attorney General, 851 S.W.2d 946, 949 (Tex. App.—Austin 1993, writ denied) (“[A]llegations of misconduct made against a police officer shall not be subject to compelled disclosure under the Act unless they have been substantiated and resulted in disciplinary action.”).

3. Applications

Information in applications for employment are usually not exempt from disclosure as they generally contain the names and qualifications of the candidates the disclosure of which would not constitute an unwarranted invasion of privacy. Hubert., 652 S.W.2d at 551-52. (holding that names and qualifications of candidates for office of university president were not exempt from disclosure); Tex. Att’y Gen. ORD-277 (1981) (stating that information on qualifications of applicants for commissioner of the Texas Board of Human Resources not exempt from disclosure); Tex. Att’y Gen. ORD-316 (1982) (stating that questionnaires from character references in a policeman’s personnel file did not contain information considered to be intimate or embarrassing and thus were not exempt from disclosure).

4. Personally identifying information

Section 552.101 specifically excepts information considered to be confidential by law, either constitutional, statutory, or by judicial decision. This includes employee birth dates. Tex. Comptroller of Pub. Accounts, 354 S.W.3d at 347; see alsoAbbott v. State Bar of Texas, 214 S.W.3d 604, 606, 609 (Tex. App.—Austin 2007, pet. denied) (State Bar of Texas maintains membership records “for the judiciary,” and therefore, access to such records is governed by Rule 12 rather than the TPIA).

5. Expense reports

It is undecided as to whether common law right of privacy provides a basis for protecting from disclosure to newspapers, under the Texas Public Information Act (PIA), expense vouchers for Governor Rick Perry’s security detail held by the Department of Public Safety (DPS). Tex. Dep’t. of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112 (Tex. 2011). The Texas Supreme Court held that common law protects from public disclosure highly intimate or embarrassing facts as well as information that substantially threatens physical harm. In doing so, the Texas Supreme Court reversed the Court of Appeals’ decision that the information was public and remanded the case so the trial court can examine each of the disputed documents to determine what information may be confidential and what must be disclosed in light of the ruling that information is protected if it creates a substantial threat of physical harm. And, as applied here, the Court opined that the vouchers may be protected since the documents reveal specific details about the number of officers assigned to protect the governor, their general location in relation to him, and their dates of travel.

6. Evaluations/performance reviews

7. Complaints filed against employees

8. Other

O. Police records

1. Accident reports

Accident reports must be disclosed to requestors unless otherwise exempted. Tex. Dep’t. of Pub. Safety, 310 S.W.3d at 675-76. The legislature amended the Transportation Code in 2015, making accident reports compiled by the Texas Department of Public Safety privileged and confidential. Tex. Transp. Code § 550.065(b). Requestors, aside from government agencies, may only obtain complete copies of accident reports if they are “directly concerned in the accident or having a proper interest therein.” Id. at (c)(4). Notably, this includes “a radio or television station that holds a license issued by the Federal Communications Commission,” and free newspapers of general circulation that are published at least once a week, and available and of interest to the general public “in connection with the dissemination of news.” Id. at (c)(4)(J)–(K).

2. Police blotter

A series of decisions involving the City of Houston and the Houston Chronicle Publishing Company has provided an imperfect outline of what basic police records are public or exempt. See Houston Chronicle Publg. Co. v. City of Houston, 531 S.W.2d 177, 185 (Tex. Civ. App. ––Houston [14th Dist.] 1975, writ ref’d n.r.e.) (“Chronicle I”). The police “blotter,” “showup sheet,” and arrest sheet are not exempt from disclosure while the offense report, arrest record, and personal history are exempt. Id. The Attorney General specifically discussed the Chronicle I case in detail and concluded that public release is required of:

Arrest sheet (similar chronological listing of arrests made during 24-hour period). (1) arrestee’s name, race and age; (2) place of arrest; (3) names of the arresting officers; (4) offense for which suspect is arrested;

Although in particular circumstances this list has been somewhat modified, it still accurately summarizes the basic test. Tex. Att’y Gen. ORD-408 (1984).

The Texas Family Code makes certain juvenile records open to the public. Tex. Fam. Code § 58.007. Accordingly, the Family Code does not make confidential juvenile law enforcement records concerning conduct occurring on or after January 1, 1996 that are maintained by law enforcement agencies. Tex. Att’y Gen. ORD-644 (1996). Other statutory provisions and exceptions to disclosure may apply to this information. Law enforcement records concerning conduct that occurred before January 1, 1996, are governed by former Section 51.14(d) of the Family Code, which is continued in effect for that purpose. Id.

3. 911 tapes

Tape recordings of calls made to the 911 number constitute public information. Tex. Att’y Gen. ORD-519 (1989). Such records are subject to public disclosure even if they are held by a “911 network district” established under the Emergency Communication District Act. Tex. Health & Safety Code. §§ 772.201-772.229 (formerly Tex. Rev. Civ. Stat. Ann. art. 1432d); Tex. Att’y Gen. ORD-519 (1989); see alsoTex. Att’y Gen. ORD-633 (1995) (although this opinion addresses the withholding of a police narrative report, it notes that the City of Waco was willing to release the 911 audiotape copy of the incident made the subject of the report). A police department’s “radio logs” or “radio cards” that describe the police department’s records of all calls answered by the police, including a brief description of the nature or reason for the call and its location, generally are public, although exceptions might arise exempting the names of complainants. Tex. Att’y Gen. ORD-394 (1983).

Additionally, the 911 Emergency Number Act makes confidential the originating telephone numbers and addresses of 911 callers that are furnished by a service supplier. Tex. Health & Safety Code § 772.218(c); see also Tex. Atty. Gen. Op. OR 2011-11538 (2011) (911 calls made on specified dates pertaining to a specified address may be withheld because although case is inactive, Houston Police Department indicated case may be reactivated once additional leads are developed). Records prepared by emergency medical services personnel can be public, unless the information relates to highly intimate or embarrassing facts, such as information concerning a drug overdose, acute alcohol intoxication, obstetrical or gynecological illness, and severe emotional or mental distress; such exempt information is confidential under common law and constitutional privacy grounds. Tex. Att’y Gen. ORD-487 (1988). Emergency medical service records also may be excepted from public disclosure under the Medical Practice Act, Tex. Occ. Code § 159.002, if the records were created under the delegated authority of a physician unless the documents are requested by a person who bears a written consent of the patient or other person authorized to act on the patient’s behalf for release of confidential information. Tex. Att’y Gen. Nos. ORD-598 (1991), ORD-578 (1990).

4. Investigatory records

The Act specifically exempts records dealing with law enforcement agency investigations. Tex. Gov’t Code § 552.108. This exception generally covers offense reports and personal history and arrest records maintained for internal use. See Houston Chronicle Publ’g. Co., 531 S.W.2d at 185. The first page of most common offense reports, however, is public when it includes information about the offense committed, crime location, identification and description of complainant, time of occurrence, property, premises and vehicles involved, description of the weather, a detailed description of the offense, and the names of the investigating officers. Id. at 186-87. Although prior opinions of the Attorney General supported the proposition that material is far less likely to be exempt under Section 552.108 when an investigative file is closed, see, e.g., Tex. Att’y Gen. ORD-378 (1983), the Texas Supreme Court concluded that the “statute’s plain language does not discriminate between ‘open’ and ‘closed’ files,” holding that Section 552.108’s “blanket exemption” does not require district attorneys to disclose internal records, whether open or closed, that deal with detection, investigation, or prosecution of crime. Holmes v. Morales, 924 S.W.2d 920, 925 (Tex. 1996).

Section 552.108(a)(1) of the Act exempts information and internal records held by a law enforcement agency relating to an active investigation. Specifically, information that would interfere with the detection, investigation, or prosecution of a crime. See id.; see also Tex. Att’y Gen. Op. OR2005-10719 (2005); see also Tex. Atty. Gen. Op. OR2011-11538 (2011) (911 calls made on specified dates pertaining to a specified address may be withheld because although case is inactive, Houston Police Department indicated case may be reactivated once additional leads are developed). However, basic information about an arrested person, an arrest, or a crime is not exempt. Tex. Att’y Gen. OR2005-10660 (2005).

Section 552.108(a)(2) of the Act excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. See, e.g., Tex. Att’y Gen. Ops. OR2005-10866 (2005), OR2005-10876 (2005). However, as with information relating to an active investigation, basic front page offenses and arrest information, as described in Houston Chronicle Publishing Company are not excepted. Id.

5. Arrest records

The appellate court in Chronicle I denied the newspaper access to “Personal History and Arrest Records,” which contained personal information on individuals suspected of crimes and a listing of all offenses for which the person had ever been arrested. Houston Chronicle Publ’g Co., 531 S.W.2d at 185. However, the Chronicle I court also concluded that “arrest sheets” containing arrestee’s name, race, age, place of arrest, names of arresting officers and offense for which suspect is arrested are required to be released. Id. at 179-80,188.

6. Compilations of criminal histories

Tex. Att’y Gen. ORD-565 (1990) discusses whether an individual may be entitled to a special right of access to his own federal criminal history when it is in the hands of local government and stated that criminal history information in the hands of a local governmental body obtained from the National Crime Information Center must be released pursuant to section 3B of the Open Records Act if the only interest protected by withholding it is the privacy of the requestor. Pursuant to Section 552.023, a person or a person’s authorized representative has a special right of access, beyond the right of the general public, to information held by a governmental body that relates to the person and that is protected from public disclosure by laws intended to protect that person’s privacy interests. Also, all information contained in either an adult or juvenile’s sex offender registration form and which is subsequently entered into the department of Public Safety database is public information and must be released upon request, except for the registrant’s photograph, Social Security number, driver’s license number, street address and telephone number, and any information that, on its face, would directly reveal the identity of the victim. Tex. Att’y Gen. ORD-645 (1996).

7. Victims

“As a rule, . . . the names of complainants are public information. . . . Only in unusual instances, such as where the complainant was the victim of a sexual assault may the identity of a complainant be withheld.” Tex. Att’y Gen. ORD-482 (1987) (citations omitted); see Houston Chronicle Pub. Co., 531 S.W.2d at 186-87 (finding a constitutionally protected right of the press to the front page of offense reports, including, among other things, the identity and description of the complainant); see also Tex. Att’y Gen. Nos. ORD-611 (1992) (advising that documents relating to a police department’s investigation of

adult victims of family violence are likewise not per se excepted from disclosure), ORD-440 (1986) (advising that the investigation file on alleged child abuse at a state school for the deaf is excepted), ORD-422 (1984) (advising that the identity of a shooting victim is not per se excepted by common law privacy), ORD-409 (1984) (advising that the names of burglary victims are not ordinarily excepted from disclosure), ORD-393 (1983) (advising that the identity of a child who may have been sexually abused is excepted by common law privacy), ORD-339 (1982) (opining that “common law privacy permits the withholding of the name of every victim of a serious sexual offense”); see alsoIn re Westwood Affiliates, L.L.C., 263 S.W.3d 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (Mother of shooting victim who brought premises liability action against owner of the retail establishment outside of which the shooting occurred not entitled to police department’s murder investigation records because such records are exempted by the law-enforcement privilege).

Article 57.02 of the Texas Code of Criminal Procedure allows victims of sex crimes to use pseudonyms in all public records concerning the offense, including in police reports and during testimony in court. Under this law, law enforcement officials cannot disclose the victim’s name, address or telephone number unless ordered to do so by a court. Tex. Crim. Proc. Code. art. 57.02.

10. Police techniques

Internal law enforcement detection and investigation methods are generally exempt under Section 552.108. In Ex parte Pruitt, 551 S.W.2d 706, 710 (Tex. 1977), the Texas Supreme Court held that the Act excepts law enforcement information if release “will unduly interfere with law enforcement and crime prevention.” In Tex. Att’y Gen. ORD-531 (1989), the Attorney General advised that detailed portions of a police department’s “use of force” procedures are excepted from disclosure under the Act because it “is reasonable to conclude that knowledge of these detailed guidelines would place an individual at an advantage in confrontations with police officers and would increase his chances of evading arrest or injuring the officer or other persons.” However, other portions of the procedures that only restate generally known common law, constitutional, or Penal Code provisions are public.

11. Mugshots

In cases that are still under active investigation, Section 552.108 may except mug shots from disclosure. Tex. Att’y Gen. Op. No. 0R2011-02525 (2011). Several Attorney General decisions have concluded that when the mug shot was taken in connection with an arrest for which the arrestee was subsequently convicted and the case is closed, information may be withheld only if its release will unduly interfere with law enforcement or crime prevention. Tex. Att’y Gen. ORD-616 (1993). However, in Holmes v. Morales, the Texas Supreme Court found that Section 552.108’s plain language makes no distinction between “open” and “closed” cases, ultimately deciding that the Act categorically excepts the Harris County District Attorney’s “closed” litigation files from disclosure. 924 S.W.2d at 925. Thus, the Court rejected the Attorney General’s construction of Section 552.108, that a prosecutor can withhold information only if its release “will unduly interfere with law enforcement or crime prevention.” Id. at 923-25. In reaching its decision, the Court noted that, while the federal Freedom of Information Act specifically includes an exception for materials which, if produced, would “interfere with enforcement proceedings,” the Act does not impose such a limitation on the broad scope of Section 552.108.” Id. at 925.

12. Sex offender records

The information contained in the sexual offender database including the numeric risk level assigned to the sex offender is public information. Tex. Code Crim. Proc. Art. 62.005(b). However, information regarding the sex offender’s social security number or driver’s license number, or any home, work, or cellular telephone number, information that would identify the victim of the offense for which the person is subject to registration, is not public. Id. The department is tasked with maintaining the database and must post any photograph of the person that is available.

Further, a local law enforcement authority shall release information deemed public to any person who requests the information from the authority. The authority may charge the person a fee not to exceed the amount reasonably necessary to cover the administrative costs associated with the authority’s release of information to the person under this subsection. Id. at (d).

The Texas Code of Criminal Procedure requires juvenile sex offenders to provide “registration information” but this information is not public information and is restricted to use by law enforcement and criminal justice agencies, the Council on Sex Offender Treatment, and public or private institutions of higher education. Tex. Code Crim. Proc. Art. 62.352(b)(2).

13. Emergency medical services records

Personal information regarding patients attended by emergency medical services personnel may not be accessed, as such information is made confidential by the Health and Safety Code and Transportation Code. Butler v. State, No. 14-00-01186-CR, 2003 WL 253296, at *7 (Tex. App.—Houston [14th Dist.] Feb. 6, 2003, no pet.). Information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of a patient who is receiving emergency medical services may be released. See Tex. Att’y Gen. OR2017-28782.

14. Police video (e.g, body camera footage, dashcam videos)

15. Biometric data (e.g., fingerprints)

16. Arrest/search warrants and supporting affidavits

17. Physical evidence

P. Prison, parole and probation reports

The Act provides for required disclosure of certain information relating to an inmate who is confined in a facility operated by or under a contract with the Texas Department of Criminal Justice. Tex. Gov’t Code§ 552.029. The information required to be disclosed includes, among other things, the inmate’s name, the inmate’s assigned unit or the date on which the unit received the inmate (unless disclosure of the information would violate federal law relating to the confidentiality of substance abuse treatment), the offense for which the inmate was convicted, the inmate’s earliest or latest possible release dates, or the basic information regarding the death of an inmate in custody. See Tex. Gov’t Code§ 552.029.

The names of prisoners transferred on specific days from county jail to the Texas Department of Criminal Justice are public. Tex. Att’y Gen. ORD-508 (1988). Inmates’ correspondence lists and prison mail logs are exempt (Tex. Att’y Gen. Nos. ORD-428 (1985), ORD-185 (1978)), as are sketches of prison security measures related to a scheduled execution. Tex. Att’y Gen. ORD-413 (1984). Recommendations for or against parole have been declared confidential, but basic parole board information, including inmates’ names, ages, gender, race, addresses, date and court of sentencing, crimes of which convicted, length of sentence, and time served of individuals whose sentences have been commuted by the Governor, was declared public. Tex. Att’y Gen. ORD-190 (1978). Specific records regarding individuals on probation and subject to the direct supervision of a court that are held by a community supervision and corrections department fall within the Act’s judiciary exclusion because such records are held on behalf of the judiciary. Tex. Att’y Gen. Op. No. OR2003-9004 (2003). Because the department maintains the submitted information on behalf of the judiciary, the Act is inapplicable to such information, and that information is therefore not subject to public release under the act. Id. Certain reports that law enforcement agencies, jails and prisons are required by statute to file with the Attorney General when a prisoner dies while in custody are not public information. Tex. Att’y Gen. ORD-521 (1989).

As a result of a lawsuit filed against the Texas prison system, a federal court ordered certain prison reforms, including adoption of a reporting system for incidents when prison employees use force on inmates. A “stipulated modification” to the court’s reform order specifies that inmates should not have access to “sensitive” information. The Attorney General has advised that the federal court, not the Attorney General, should determine whether “use of force” reports are “sensitive” and exempt from public disclosure. Tex. Att’y Gen. ORD-560 (1990).

Q. Professional licensing records

R. Public utility records

Section 552.022(3) specifically provides for disclosure of “information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body,” unless otherwise made confidential by law. The Attorney General has interpreted this section to apply to a public utility’s bill ledgers, even where these records would show which customers are delinquent in payment. Tex. Att’y Gen. ORD-443 (1986). In so advising, the Attorney General explained that citizens may have privacy rights concerning private debts, but the public has a legitimate interest in knowing who owes money to governmental bodies. Id. The tax status of municipal utility customers likewise is public. Tex. Att’y Gen. ORD-520 (1989). In addition, the Attorney General concluded that the Public Utility Commission may publicly disclose a report regarding the scope of competition in the telecommunication market without implicating the proprietary interests of the entities that were required to provide the information on which the report was based, as long as the commission avoided the identification, either explicitly or implicitly, of any of the responding utilities. Tex. Att’y Gen. Op. No. 95-043 (1995).

S. Real estate appraisals, negotiations

Section 552.105 of the Act exempts from disclosure information concerning the location of real or personal property for public purposes before public announcement of the project, as well as information concerning appraisals or purchase prices of real or personal property before formal award of a contract for the property. Section 552.105 “was designed to protect a governmental body’s planning and negotiating position with respect to particular transactions” and even can exempt “appraisal information about a parcel of property acquired in advance of other parcels, if release of this information would harm the department’s negotiating position with respect to the other parcels of land.” Tex. Att’y Gen. ORD-564 (1990).

1. Appraisals

Information is excepted from the requirements of Section 552.021 if it is information relating to appraisals or purchase price of real or personal property for a public purpose prior to the formal award of contracts for the property. Tex. Gov’t Code § 552.105,

2. Negotiations

Information is excepted from the requirements of Section 552.021 if it is information relating to the location of real or personal property for a public purpose prior to public announcement of the project. Tex. Gov’t Code § 552.105. Section 552.105 “was designed to protect a governmental body’s planning and negotiating position with respect to particular transactions.” Tex. Att’y Gen. ORD-564 (1990). However, when negotiations for acquisition of real property has been completed, factual information relating to the project will become open to the public. Tex. Atty. Gen. Op. No. ORD-291 (1981); Tex. Atty. Gen. Op., No. ORD-234 (1980).

3. Transactions

Information relating to real property sales prices, descriptions, characteristics, and other related information received from a private entity by the comptroller or the chief appraiser of an appraisal district under Chapter 6, Tax Code, is excepted from the requirements of Section 552.021. Tex. Gov’t Code § 552.149(a).

4. Deeds, liens, foreclosures, title history

5. Zoning records

T. School and university records

1. Athletic records

Nothing in the Act exempts athletic records, as long as the records are in the custody of a “governmental body” and are not exempt student or educational records. See Tex. Att’y Gen. ORD-447 (1986). In Tex. Att’y Gen. ORD-539 (1990), the Attorney General advised that tape recordings of an interview between public university officials and a former student athlete are exempt education records “to the extent that they contain information about the former student’s attendance at the university. Portions of the interview relating to the former student’s recruitment by the university are also education records.”

2. Trustee records

As long as the university involved is a “governmental body” as defined by Section 552.003, there is nothing in the Act to suggest that the records of trustees should be treated any differently than the records of other deliberative governing bodies. However, tape recordings of closed Board of Trustees meetings are excepted from disclosure as information deemed confidential by law. Tex. Att’y Gen. Op. No. OR2003-4288 (2003).

3. Student records

Section 552.114 excludes from disclosure information found in a student record at an educational institution. Section 552.026 provides that a governmental body is not required to release “information contained in education records” except in conformity with the Federal Educational Rights and Privacy Act of 1974 (FERPA). FERPA, Section 1232g(b)(1) & (2), provides for the release of “educational records” and “any personally identifiable information in education records,” other than directory information, only when a parent consents or when one of the specific exceptions applies. See Fish v. Dallas Indep. Sch. Dist., 31 S.W.3d 678, 680 (Tex. App. ––Eastland 2000, pet. denied).

The federal act gives educational institutions discretion to release “directory information” about students after compliance with federal notice requirements. 20 U.S.C. § 1232g(a)(5). This section defines “directory information” as including a student’s “name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, [and] degrees and awards received.” Even though the federal act gives an educational institution discretion as to what records the institution classifies as “directory,” the Texas Attorney General has advised that the Texas Public Information Act requires a stricter standard. “Any student record which could be treated as directory information under federal law must be accorded that status unless its release would, as a matter of law, constitute an invasion of any person’s right of privacy. Such a standard [is] essentially the same as that of [Section 552.114].” Tex. Att’y Gen. ORD-242 (1980) (emphasis added) (advising that student parking permit records should be “directory” information and released after the institution complies with federal notice requirements).

4. School foundation/fundraising/donor records

5. Research material or publications

6. Other

U. State guard records

Government Code § 437.232 provides that “military personnel information is confidential and not subject to disclosure” under the Act. Information confidential under this provision includes a service member’s name, home address, rank, official title, pay rate or grad, state active duty orders, deployment locations, military duty addresses, awards and decorations, length of service, and medical records. Id. This confidentiality extends to records concerning members of the Texas National Guard and Texas State Guard. See Tex. Gov’t Code § 431.001(14); Tex. Att’y Gen. OR2017-27260.

The Texas Tax Code contains confidentiality provisions as well, making “all ‘information secured, derived, or obtained by the comptroller’” from an examination of a taxpayer’s records and business affairs confidential. A & T Consultants, Inc., 904 S.W.2d at 675.

W. Vital Statistics

Section 552.115 excepts from public disclosure birth and death records maintained by the Bureau of Vital Statistics of the Texas Department of Health, except that birth records become public 75 years after the date of birth shown on the record filed and death records become public 25 years after the date shown on the record filed. “[S]ubject to [Texas Board of Health] rules controlling the accessibility of vital records, the state registrar shall supply to a properly qualified applicant, on request, a certified copy of a record, or part of a record, of a birth, death, or fetal death registered under this title.” Tex. Health & Safety Code § 191.051(a). The Bureau of Vital Statistics “shall furnish on request any information it has on record relating to any marriage, divorce, or annulment of marriage.” Tex. Health & Safety Code § 194.0049(a). But, the Bureau may not issue a certificate or a certified copy of information relating to a marriage, report of divorce or annulment of marriage. Tex. Health & Safety Code § 194.0049(b).

1. Birth certificates

Section 552.115 provides that a birth record maintained by the bureau of vital statistics of the Texas Department of Health or a local registration official is excepted from required public disclosure except that “a birth record is public information and available to the public on and after the 75th anniversary of the date of birth as shown on the record filed with the bureau of vital statistics or local registration official.” SeeTex. Att’y Gen. OR2005-08527 (2005) (finding that the city could not withhold a city peace officer’s birth certificate as it was not maintained by the bureau of vital statistics or local registration official).

2. Marriage and divorce

Section 552.141(a) of the Act exempts the Social Security number of an individual that is maintained by a county clerk and that is on an application for a marriage license. Under this section, if a the county clerk receives a request to make the information in a marriage license application available, the county clerk must redact the portion of the application that contains such Social Security number and then release the remainder of the information on the application. Tex. Gov’t Code §552.141(b). A divorce decree is a court-filed document that is expressly public under Section 552.022 of the Government Code and may not be withheld unless confidential under other law. Tex. Att’y Gen. Op. Nos. OR2004-5118 (2004).

3. Death certificates

Under Section 552.115 of the Act, a death record becomes public information on and after the 25th anniversary of the date of death as shown on the record filed with the bureau of vital statistics or local registration official. As with birth records, death records maintained by the bureau of vital statistics or local registration official are available to the public. Tex. Att’y Gen. OR2005-07470 (2005).

4. Infectious disease and health epidemics

IV. Procedure for obtaining records

A. How to start

Although the Act does not prohibit oral requests, a request must be in writing before Section 552.301 applies. Under that section, a governmental body that receives a written request for information it considers exempt from disclosure (even though there has been no specific previous determination that such information is exempt) must ask for a decision from the Attorney General within 10 days of receiving the written request. Tex. Gov’t Code § 552.301(a) and (b). Oral requests do not trigger this 10-day deadline. See Tex. Att’y Gen. ORD-304 (1982). Accordingly, a written request is an implied requirement of the Act. A subpoena duces tecum or a request for discovery that is issued in compliance with a statute or a rule of civil or criminal procedure is not considered to be a request for information under the Act. Tex. Gov’t Code § 552.0055.

Written requests do not have to be in any particular form or use “magic words.” Tex. Att’y Gen. ORD-483 (1987). A written request includes a request made in writing by electronic mail or facsimile transmission. Tex. Gov’t Code § 552.301. The written request should be made to the officer for public information, Section 552.301(c), defined in Section 552.201 as the “chief administrative officer of a governmental body.” Also, each elected county officer is the officer for public information created or received by that county officer’s office. Tex. Gov’t Code § 552.201(b).

As a practical matter, though, and to help avoid delays, it is advisable to send a duplicate copy to the clerk who normally handles the requested records. And while the Act does not require a requestor to specify a deadline for requested production of information, such a specification may hasten release of the information. The statute requires only “prompt” production by the officer for public records and requires that the officer seek within a reasonable time — no later than 10 business days after receipt of the request — an Attorney General’s opinion if the governmental body deems the records excepted from the statute’s disclosure requirements. While custodians frequently take the 10-day limit to either furnish the requested records or request an Attorney General opinion, the ready availability of many records and the importance of timely disclosure to the requestor in many cases suggest a reasonable time would be less than 10 days. Consequently, the requestor should designate a short deadline where appropriate.

The request should identify what information is sought as accurately as possible, because the governmental body can ask for clarification if it cannot reasonably understand the request. Tex. Att’y Gen. ORD-23 (1974); § 552.222. Likewise, the governmental body must make a good faith effort to explain what type of records are available, so a vague request can be narrowed. Tex. Att’y Gen. ORD-87 (1975).

Arrangements to inspect & copy. “It shall be a policy of a governmental body to provide a suitable copy of public information within a reasonable time after the date on which the copy is requested.” Tex. Gov’t Code § 552.228(a). If the information exists in an electronic or magnetic form, the requestor may request a copy in paper or electronic form. Tex. Gov’t Code § 552.228(b). Under Section 552.230 of the Act a governmental body may promulgate reasonable rules, which are consistent with the Act, of procedure under which public information may be inspected and copied efficiently, safely, and without delay. Examination of the information must be completed within 10 business days after the custodian of the information makes it available. Tex. Gov’t Code § 552.225(a). The officer for public information shall extend the initial examination period by an additional 10 business days if, within the initial period, the requestor files a written request for additional time. The officer for public information shall extend an additional examination period by another 10 business days if, within the additional period, the requestor files a written request for more additional time. Tex. Gov’t Code § 552.225(b). The time during which a person may examine information may be interrupted by the officer for public information if the information is needed for use by the governmental body. The period of interruption is not considered to be a part of the time during which the person may examine the information. Tex. Gov’t Code § 552.225(c).

Charges for providing copies of public information. The charge for providing a copy of public information shall be an amount that reasonably includes all costs related to reproducing the requested information. Tex. Gov’t Code § 552.261. If a copy request or request to inspect a paper record exceeds $40, the governmental body must provide an itemized statement that details all estimated charges. Tex. Gov’t Code § 552.2615. If the requestor does not request a copy of the public information, a charge may not be imposed for making that information available for inspection. Tex. Gov’t Code § 552.271. For requests to inspect electronic information that is not available directly online to the requestor, a charge may not be imposed, unless complying with the request will require programming or manipulation of data. Tex. Gov’t Code § 552.272. If a request is for 50 or fewer pages of paper records, the charge for providing the copy of the public information may not include costs of materials, labor, or overhead, unless the pages to be photocopied are located in two or more separate buildings that are not physically connected with each other; or a remote storage facility. Tex. Gov’t Code 552.261(a).

1. Who receives a request?

The written request should be made to the officer for public information, see Tex. Gov’t Code § 552.301(c), defined as the “chief administrative officer of a governmental body.” Id. at § 552.201(a). Also, each elected county officer is the officer for public information created or received by that county officer’s office. Id. at (b).

2. Does the law cover oral requests?

If a requestor wants to timely receive requested records under the Act and start the applicable deadlines, she should memorialize her request in writing. Although the Act does not prohibit oral requests, a request must be in writing before Section 552.301 applies. Tex. Att’y Gen. ORD-304 (1982) (“[T]he statute [Open Records Act] does not require any governmental body to produce information in the absence of a written request.”); Tex. Att’y Gen. OR2000-1597 (2000) (stating that a written request triggers the deadlines of the Act).

Under Section 552.230 of the Act a governmental body may promulgate reasonable rules, which are consistent with the Act, of procedure under which public information may be inspected and copied efficiently, safely, and without delay. Examination of the information must be completed within 10 business days after the custodian of the information makes it available. Tex. Gov’t Code § 552.225(a). The governmental official “must provide access to public records on a daily basis for a minimum of 10 days per request.” Felix v. Thaler, 923 S.W.2d 650, 653 (Tex. App.—Houston [1st Dist.] 1995, no writ.); Tex. Att’y Gen. OR94-010 (1994). When a governmental body cannot produce requested information within ten business days of receipt of the request for the information, the public information officer must certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available. Tex. Att’y Gen. ORD-664 (2000).

The officer for public information shall extend the initial examination period by an additional 10 business days if, within the initial period, the requestor files a written request for additional time. The officer for public information shall extend an additional examination period by another 10 business days if, within the additional period, the requestor files a written request for more additional time. Tex. Gov’t Code § 552.225(b). The time during which a person may examine information may be interrupted by the officer for public information if the information is needed for use by the governmental body. The period of interruption is not considered to be a part of the time during which the person may examine the information. Tex. Gov’t Code § 552.225(c).

Although the Act does not prohibit oral requests, a request must be in writing before Section 552.301 applies. Tex. Att’y Gen. ORD-304 (1982) (“[T]he statute [Open Records Act] does not require any governmental body to produce information in the absence of a written request.”); Tex. Att’y Gen. OR2000-1597 (2000) (stating that a written request triggers the deadlines of the Act).

3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

Where a request for public information has been made, the officer for public information “shall promptly produce [such] information for inspection, duplication, or both on application.” Tex. Gov’t Code § 552.221(a); Moore v. Collins, 897 S.W.2d 496, 499 (Tex. App. –– Houston [1st Dist.] 1995, no writ) (the Act requires officers “to produce public [information] upon request”). Section 552.228 instructs governmental bodies to provide a “suitable copy of public information within a reasonable time” after the request. What is “reasonable” depends on the facts surrounding each request. Tex. Att’y Gen. ORD-467 (1987). If the information is unavailable at the time of the request to examine because it is in active use or in storage, the officer for public information should certify this fact in writing and set a reasonable date and hour when the information will be made available. See Tex. Gov’t Code § 552.221(c). The 1995 legislature amended Tex. Gov’t Code § 552.222 to allow a governmental body to ask the requestor to clarify the request if it is unclear and to discuss the scope of the request if a large amount of information is requested. See City of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex. 2010) (“a governmental entity, acting in good faith, requests clarification or narrowing of an unclear or overbroad request for public information, the ten-day period to request an attorney general opinion is measured from the date the request is clarified or narrowed”). However, the governmental body may not inquire into the purpose for which information will be used. Tex. Gov’t Code § 552.222(b).

The 1995 legislature also amended Section 552.221 to specify that an officer for public information complies with the Act by providing the public information for inspection or duplication in the offices of the governmental body or by sending copies of the public information by first class mail. Section 552.225(b) gives the person requesting the information 10 days to examine it after it has been made available. The requestor may extend the examination period by an additional 10 days if a written request for such extension is filed with the officer of public information before the initial period expires. A second 10-day extension may also be obtained in this manner. Tex. Gov’t Code § 552.225(b).

If a governmental body receives a written request that it believes falls within one of the exceptions listed in the Act, it may still choose to release the information, unless the information is deemed confidential by law. If the governmental body believes the material falls within an exception and does not want to release the information, the governmental body must, no later than 10 business days after receiving the written request, request a decision from the Attorney General as to whether the information falls within the stated exception. Tex. Gov’t Code § 552.301(b). This 10-day limit, however, is tolled between the time that the governmental body requests in good faith a clarification or narrowing of the request and the time that the governmental body receives a clarification or narrowing response. Tex. Att’y Gen. Nos. ORD-663 (1999), ORD-333 (1982). A governmental body that requests an Attorney General decision must provide to the requestor within a reasonable time, but not later than the tenth business day after the date of receiving the request, a written statement that the governmental body wishes to withhold the requested information and has asked for a decision from the attorney general, as well as provide the requestor with a copy of the governmental body’s written communication to the Attorney General (or, if the governmental body’s written communication to the attorney general discloses the requested information, a redacted copy of that written communication). Tex. Gov’t Code § 552.301(d); see also City of Dallas, 304 S.W.3d at 384-85 (“[P]ublic entities requesting an attorney general opinion must specify the exceptions that apply within the same ten-day period in which an opinion must be requested.”).

If the governmental body fails to make a timely request for an Attorney General’s opinion, “the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information.” Tex. Gov’t Code § 552.302. When a private third party’s interest is at stake, this acts as a compelling reason to overcome the presumption. Tex. Att’y Gen. ORD-319 (1982). The governmental body’s letter to the Attorney General requesting an opinion is public under the Act, Tex. Att’y Gen. ORD-459 (1987), and must be disclosed to the requestor—however, if information that is in dispute is contained in the letter, that information can be redacted. Id.; Tex. Gov’t Code § 552.301(d)(2). To avoid this issue, the best practice is for governmental bodies to submit information which is the subject of their request or which raises a privacy claim in a separate document accompanying their request letter, rather than in the letters themselves. Tex. Att’y Gen. ORD-459 (1987). A governmental body requesting an Attorney General opinion must, within a reasonable time but no later than the fifteenth business day after receiving the written request for information, submit to the Attorney General (A) written comments stating the reasons why the stated exception(s) apply that support the withholding of information requested, (2) a copy of the written request for information, (C) a signed statement as to the date on which the written request was received, and (D) a copy of the specific information requested, or submit representative samples of the information if a voluminous amount of information was requested. Tex. Gov’t Code § 552.301(e). Further, the governmental body must label that copy of the specific information, or of the representative samples, to indicate which exceptions apply to which parts of the copy. Tex. Gov’t Code § 552.301(e).

Section 552.306 provides that the Attorney General “shall promptly render a decision . . . consistent with the standards of due process” and issue a written opinion. The Attorney General determines whether the requested information is within one of the exceptions where disclosure is not required under the Act. Id.

Under revisions passed by the 1995 legislature, the Attorney General may determine whether the submission of information is sufficient to render a decision. Tex. Gov’t Code § 552.303(b). If the governmental body has failed to provide the Attorney General with all of the specific information necessary to render a decision, the Attorney General is required to give written notice of that fact to the governmental body and to the requestor. Tex. Gov’t Code § 552.303(c). The governmental body then has seven calendar days to submit the necessary additional information; otherwise, the requested information is presumed to be public. Tex. Gov’t Code § 552.303(d), (e). Any member of the public may submit written comments stating reasons why the information should or should not be released. Tex. Gov’t Code § 552.304. If an information request might involve a third party’s privacy or property interests, Section 552.305 provides that “a governmental body may decline to release the information for the purpose of requesting an attorney general decision.” In such a case, the governmental body that requests an Attorney General decision shall make, no later than the tenth business day after receipt of the request, a good faith attempt to notify that person of the request for the Attorney General decision. Tex. Gov’t Code § 552.305(d). Such third parties “whose interests may be involved . . . or any other person, may submit in writing to the attorney general the person’s reasons why the information should be withheld or released.” Tex. Gov’t Code § 552.305(b).

The Attorney General must render a decision within 45 working days after receiving the request for a decision. Tex. Gov’t Code § 552.306(a). If the Attorney General is unable to render a decision within that period, the Attorney General may extend that period by 10 business days by informing the governmental body and the requestor, during the initial 45-day period, of the reason for the delay. Id. The Attorney General’s opinion must be in writing, copies of which must be provided to the requestor. Tex. Gov’t Code § 552.306(b).

The Act does not set out any procedure for appealing the Attorney General’s decision. The governmental body requesting the Attorney General opinion is bound by that opinion unless it challenges it in court. Tex. Gov’t Code § 552.324(b). The governmental body has 30 calendar days to file a challenge to the Attorney General’s decision in court. Tex. Gov’t Code § 552.324(b).

1. Statutory, regulatory or court-set time limits for agency response

Where a request for public information has been made, the officer for public information “shall promptly produce [such] information for inspection, duplication, or both on application.” Tex. Gov’t Code § 552.221(a); Moore, 897 S.W.2d at 499 (the Act requires officers “to produce public [information] upon request”). An officer for public information complies with the Act by providing the public information for inspection or duplication in the offices of the governmental body or by sending copies of the public information by first class mail. Tex. Gov’t Code § 552.221.

The Act requires a governmental body, in the usual case, to produce requested public information as soon as reasonably possible and without delay. Tex. Att’y Gen. No. ORD-664 (2000). What constitutes a reasonable period of time depends on the facts in each case. Id. The volume of information requested is “highly relevant to what constitutes a reasonable period of time.” Id. A reasonable period of time may be less than or greater than ten business days, depending on the circumstances. Id. For example, a governmental body should be able to comply immediately with a request for one specified document that the governmental body has previously released to the public or that the Attorney General has previously determined to be public information, absent unusual circumstances. Id. On the other hand, a request for a voluminous amount of information which requires an extensive search for responsive information might require more than ten business days for production of the information. Id.

2. Informal telephone inquiry as to status

3. Is delay recognized as a denial for appeal purposes?

4. Any other recourse to encourage a response

If the governmental body fails to make a timely request for an Attorney General’s opinion, “the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information.” Tex. Gov’t Code § 552.302. When a private third party’s interest is at stake, this acts as a compelling reason to overcome the presumption. Tex. Att’y Gen. ORD-319 (1982).

C. Administrative appeal

1. Time limit to file an appeal

2. To whom is an appeal directed?

3. Fee issues

4. Contents of appeal

5. Waiting for a response

6. Subsequent remedies

D. Additional dispute resolution procedures

1. Attorney General

2. Ombudsperson

3. Other

E. Court action

1. Who may sue?

Section 552.321(a) provides that if a governmental body refuses to request an Attorney General’s decision or to supply public information, the person requesting the information or the Attorney General may file suit for a writ of mandamus compelling the governmental body to make the information available to the public. Such mandamus suits are controlled by the Texas Rules of Civil Procedure. Nothing in the Act, case law, or Attorney General opinions state what mandamus approach is preferred and some open records actions have been litigated as normal civil lawsuits. Amendments made to the Act in 1999 permit actions for declaratory judgment or injunctive relief to be brought against a governmental body that violates the Act. Tex. Gov’t Code § 552.3215.

A governmental body may file a declaratory judgment action against the Attorney General to determine its rights and liabilities under the Act. City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000). However, the only suit a governmental body or officer for public information may file seeking to withhold information from a requestor is a suit that is filed in accordance with Sections 552.325 or 552.353, and must be brought no later than the thirtieth calendar day after the governmental body receives notice of the Attorney General’s decision that the information must be disclosed. Tex. Gov’t Code § 552.324. A governmental body, officer for public information, or other person or entity that files suit seeking to withhold information from the requestor may not file suit against the requestor, although the requestor is entitled to intervene in the suit. Tex. Gov’t Code § 552.325(a). The governmental body must make a timely good faith effort to notify the requestor of the existence of the suit and inform the requestor, among other things, of his right to intervene. Tex. Gov’t Code § 552.325(b).

2. Priority

Generally, a plaintiff in a district court mandamus action may request a show cause order requiring the governmental body to respond to the mandamus petition within 10 days. Otherwise, there is no special, expedited docket treatment of public record questions. The Act does not address any such expedited treatment.

3. Pro se

While it is possible for a party to pursue pro se court actions involving public information questions, it is not advisable for several reasons. First, judges generally are hostile to pro se actions. Second, anyone appearing in court (regardless of his or her legal abilities or the subject matter of the suit) must follow the Texas Rules of Civil Procedure, which are complex and occasionally quirky, especially to a layperson. Someone requesting public information probably wants access as soon as possible; a quicker resolution is more likely if the requestor’s representative in court intimately knows its rules and the system. Third, the governmental body probably will be represented by an attorney. Fourth, laypersons may have difficulty researching prior open records decisions to cite to the court. Relatively few court opinions interpret the Act. Instead, the Texas Attorney General’s opinions or more than 600 “Open Record Decisions” supply non-binding but persuasive interpretations of the Act.

4. Issues the court will address

A requestor’s mandamus suit asks the court for an order compelling a governmental body to make information available for public inspection, as required by the Act. See Tex. Gov’t Code § 552.321. A court,therefore, can address any question related to such requested order, which potentially could include whether the governmental body’s denial of access was proper, whether the fees charged are excessive or beyond the actual cost of providing such records, or whether the governmental body has failed to “promptly” produce public information for inspection. See Tex. Gov’t Code § 552.221. However, one court has limited the authority of a trial court to issue a writ of mandamus pursuant to Section 552.321 to three instances: (1) where a governmental body refuses to request an attorney general’s decision on whether information is public; (2) where the governmental body refuses to supply public information; (3) and where a governing body refuses to supply information that the attorney general has determined is public information not excepted from disclosure. Thomas, 71 S.W.3d at 481.

a. Denial

“Section 552.321 confers upon the trial court the authority to issue a writ of mandamus in three circumstances: where a governmental body refuses to request an attorney general’s decision on whether information is public; where the governmental body refuses to supply public information; and where a governing body refuses to supply information that the attorney general has determined is public information not excepted from disclosure.” Thomas, 71 S.W.3d at 481; see Loving v. City of Houston, 282 S.W.3d 555, 561 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“A suit for mandamus may be filed to compel a governmental body to make information available for public inspection under certain circumstances; and Hankins v. Dallas Independent School Dist., 698 F. Supp. 1323, 1332 (N.D. Tex. 1988) (“[H]ad Plaintiff not been allowed to inspect his personnel file, his recourse was to seek a writ of mandamus against the officials who refused to allow him to inspect his personnel file.”).

c. Delays

The Legislature “has not addressed or provided a waiver of sovereign immunity as to a claim that is based on a governmental body’s delay or its motives for delaying the release of information that is subject to disclosure under [the Act].” Gates v. Tex. Dep’t of Family and Protective Servs., No. 03-15-00631-CV, 2016 WL 3521888 at *4 (Tex. App.—Austin June 23, 2016, pet. denied).

d. Patterns for future access (declaratory judgment)

A governmental body may file a declaratory judgment action against the Attorney General to determine its rights and liabilities under the Act. City of Garland, 22 S.W.3d 351. A requestor may also file a declaratory judgment action. Dominguez v. Gilbert, 48 S.W.3d 789, 796 (Tex. App.—Austin 2001, no pet.). However, the Austin Court of Appeals stated that while under earlier versions of the Act, requestors could sue for declaratory judgment in addition to mandamus, the Court declined to express an opinion as to whether the 1999 amendments to the Act changed the law in that regard. Id.

5. Pleading format

Pleadings for an open records mandamus or other action are no different than other civil pleadings and must comport with requirements of the Texas Rules of Civil Procedure. Proceedings brought under the Act are brought, heard, and determined in the same manner as civil actions generally. Cornyn v. City of Garland, 994 S.W.2d 258, 264 (Tex. App.—Austin 1999, no pet.).

6. Time limit for filing suit

The Act itself does not set out any special time limit for filing suit. According to at least one court, “because there is no specific deadline for filing a civil enforcement proceeding . . . the four-year residual state of limitations applies.” Lisson v. Univ. of Tex. Inv. Mgmt. Co., No. 03-02-00465-CV, 2003 WL 21241631 at *2 (Tex. App.—Austin May 30, 2003, pet. denied).

The requestor is not required to wait for a decision of the Attorney General before seeking redress in court. Tex. Dep’t of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.—Austin 1992, no writ).

7. What court?

The Act provides that a mandamus suit filed by a requestor must be filed in a district court for the county in which the main offices of the governmental body are located. Tex. Gov’t Code § 552.321(b). A suit filed by the Attorney General under the Act must be filed in a district court of Travis County, except that a suit against a municipality with a population of 100,000 or less must be filed in a district court for the county in which the main offices of the municipality are located. Id.

8. Burden of proof

9. Judicial remedies available

10. Litigation expenses

a. Attorney fees

Attorney’s fees are recoverable for the party who substantially prevails. To qualify as a prevailing party, there must be judicially sanctioned “relief on the merits” that “materially alters the legal relationship between the parties.” Intercontinental Grp P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653-54 (Tex. 2009). However, fees may not be assessed if the court finds that the governmental body acted in reasonable reliance on a judgment or an order of a court, the published opinion of an appellate court, or a written decision of the Attorney General. Tex. Gov’t Code § 552.323(a). The court also considers whether the conduct of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith. Tex. Gov’t Code § 552.323(b).

The court may choose not to award attorney’s fees, especially if an attorney’s firm represents him on the matter. Simmons v. Kuzmich, 166 S.W.3d 342, 350 (Tex. App.—Fort Worth 2005, no pet.) (“Kuzmich’s testimony provides a complete admission that neither his associate nor his firm were contemplating payment of attorneys’ fees in connection with representing him in this matter. On cross-examination, Kuzmich admits that neither he nor anyone from his office is billing for time spent representing him or incurring fees and that he has only ‘lost some time in the office.’”).

b. Court and litigation costs

Court costs are recoverable for the party who substantially prevails. However, costs may not be assessed if the court finds that the governmental body acted in reasonable reliance on a judgment or an order of a court, the published opinion of an appellate court, or a written decision of the Attorney General. Tex. Gov’t Code § 552.323(a). The court also considers whether the conduct of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith. Tex. Gov’t Code § 552.323(b).

11. Fines

12. Other penalties

13. Settlement, pros and cons

F. Appealing initial court decisions

1. Appeal routes

The losing party may proceed to the intermediate Court of Appeals or the Texas Supreme Court by way of mandamus or, in some instances, by way of appeal. The normal rules for appellate actions found in the Texas Rules of Civil and Appellate Procedure apply.

2. Time limits for filing appeals

3. Contact of interested amici

The Freedom of Information Foundation of Texas Inc. is a statewide clearinghouse for freedom of information matters and will coordinate amicus curiae efforts. Interested people should contact Kelley Shannon, Executive Director, Freedom of Information Foundation of Texas at (512) 377-1575. The foundation’s address is 3001 N. Lamar Boulevard, Suite 302, Austin, Texas 78705. The foundation may also be contacted through its e-mail address, kelley.shannon@foift.org, and over the Internet, at www.foift.org.

The foundation also operates a hotline (800-580-6651) staffed by volunteer Texas media law attorneys who will help answer questions regarding open government laws in Texas.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state’s highest court.

In Cameron Cty. Good Gov’t League v. Ramon, 619 S.W.2d 224, 230 (Tex. App.—Beaumont 1981, writ ref’d n.r.e.), the plaintiffs consisted of a county good government league and two private citizens, all of whom were found to be within the statutory language of “interested persons” who had authority to commence a legal proceeding. The court wrote that “[i]t is difficult to see how the Legislature could broaden the class of ‘any interested person.’” See also City of Fort Worth v. Groves, 746 S.W.2d 907, 913 (Tex. App.—Fort Worth 1988, no writ) (finding that “affected taxpayer and citizen” had standing under the Open Meetings Act). This is consistent with the Act’s intent, which is to “safeguard the public’s interest in knowing the workings of its governmental bodies.” Cox Enter. Inc. v. Board of Trustees of Austin Indep. Sch. Dist., 706 S.W.2d 956, 960 (Tex. 1986); see also Acker v. Texas Water Comm’n, 790 S.W.2d 299, 300 (Tex. 1990) (“The explicit command of the statute is for openness at every stage of the deliberations.”); Finlan v. City of Dallas, 888 F. Supp. 779, 783 (N.D. Tex. 1995) (“Thus, the public policy embodied in the [Act] is that, absent compelling reasons to the contrary, the public business should be conducted in public.”).

B. What governments are subject to the law?

1. State

Section 551.001(3)(A) defines a state “governmental body” as “a board, commission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members.” This definition has been interpreted broadly. For example, in Gulf Reg’l Educ. Television Affiliates v. Univ. of Houston, 746 S.W.2d 803, 809 (Tex. App.—Houston [14th Dist.] 1988, writ denied), the appellate court found that an auxiliary enterprise of a state university was a governmental body subject to the Act because its board of directors formulated policy, spent public funds, and operated with little control or supervision by the university. The court held that before the Act is applicable to a meeting of a statewide public body, five prerequisites must be met: “(1) The body must be an entity within the executive or legislative department of the state; (2) The entity must be under the control of one or more elected or appointed members; (3) The meeting must involve formal action or deliberation between a quorum of members[;] (4) The discussion or action must involve public business or public policy[; and] (5) The entity must have supervision or control over that public business or policy.” Id. The Act does not, however, extend to the judicial branch of state government, although the meetings of the State Bar of Texas board of directors and the Board of Law Examiners must comply with the Act pursuant to Tex. Gov’t Code. Sections 81.021 and 82.003.

2. County

Section 551.001(3)(B) specifically includes county commissioners courts (the basic county governing unit in Texas) in the definition of “governmental body.” County boards of school trustees and of education are also included in that definition pursuant to Section 551.001(3)(F) & (G); Thomas v. Beaumont Heritage Society, 339 S.W.3d 893, (Tex. App.—Beaumont, 2011) (a school board and staff also may be subject to an injunction concerning the requirements of the Open Meetings Act); but see Forney Messenger, Inc. v. Tennon, 959 F. Supp. 389, 392-93 (N.D. Tex. 1997) (the individual members of a governmental body could not be sued in their individual capacity under Section 551.141). Finally, other county bodies may be covered by the Act by virtue of the broad language of Section 551.001(3)(D), which includes the following in the definition of “governmental body:” “a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county. . .” See, e.g., Tex. Att’y Gen. Op. No. JC-0411 (2001) (finding that the Board of Trustees of the Risk Pool for the El Paso County Health Benefits Program, which exercises governmental authority as an agent of the county, is subject to the Act). But see City of Austin v. Evans, 794 S.W.2d 78, 83-84 (Tex. App.—Austin 1990, no writ) (holding that a City of Austin grievance committee that made only recommendations was not a deliberative body with rulemaking authority and was not, therefore, subject to the Act); Tex. Att’y Gen. Op. No. GA-0361 (2005) (“Because a county election commission is not a county commissioners court, a committee thereof, or a deliberative body with rulemaking or quasi-judicial power, it is not a governmental body.”)

3. Local or municipal

Municipal governing bodies in the state, school district boards of trustees and governing boards of special districts created by law are all bound to comply with the Act, pursuant to sections 551.001(3)(C), (E) & (H). In Sierra Club v. Austin Transp. Study Policy Advisory Comm., 746 S.W.2d 298 (Tex. App.—Austin 1988, writ denied), an appellate court concluded that a 17-member committee of state, county, regional and municipal public officials was a “special district” subject to the Act because it had decision-making powers. See also Tex. Att’y Gen. Op. No. GA-0280 (2004) (the Border Health Institute created under the Texas Education Code, which is primarily composed of representatives of public entities, whose enabling statute indicates that it performs governmental functions, and which received appropriated and federal funds, “exhibits the kind of qualities sufficient to bring it within the category of a ‘special district’ for purposes of the [Act]”); Tex. Att’y Gen. Op. No. H-238 (1974) (concluding that the governing body of the Harris County Hospital District was a special district subject to the Open Meetings Act). Section 551.001(3)(D) also includes the following within the definition of “governmental body:” “a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a . . . municipality.” See also Finlan, 888 F. Supp. at 782-84 (an ad hoc municipal sports development committee is subject to the Act); Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Landowners’ Ass’n, 2 S.W.3d 459, 461 (Tex. App.—San Antonio 1999, pet. denied) (a water district is subject to the Act); Blankenship v. Brazos Higher Educ. Auth. Inc., 975 S.W.2d 353, 360 (Tex. App.—Waco 1998, pet. denied) (finding that a nonprofit corporation that issues revenue bonds to purchase student loans was not a deliberative body within the Act, as it does not hear or make binding determinations on disputes); City of Combes, Tex. v. East Rio Hondo Water Supply Corp., 244 F. Supp. 2d 778, 781 (S.D. Tex. 2003) (“for the purposes of the Texas Open Government and Open Meetings Acts, a water supply corporation is a ‘governmental body.’”).

C. What bodies are covered by the law?

The Act applies to “[e]very regular, special, or called meeting of a governmental body.” Tex. Gov’t Code § 551.002. The term “governmental body” includes:

(A) a board, commission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members;

(B) a county commissioners court in the state;

(C) a municipal governing body in the state;

(D) a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality;

(E) a school district board of trustees;

(F) a county board of school trustees;

(G) a county board of education;

(H) the governing board of a special district created by law;

(I) a local workforce development board created under Section 2308.253;

(J) a nonprofit corporation that is eligible to receive funds under the federal community services block grant program and that is authorized by this state to serve a geographic area of the state; and

(K) a nonprofit corporation organized under Chapter 67, Water Code, that provides a water supply or wastewater service, or both, and is exempt from ad valorem taxation under Section 11.30, Tax Code; and

1. Executive branch agencies

a. What officials are covered?

Sections 551.143 and 551.144 provide that “[a] member” of a governmental body who knowingly violates the terms of the Act is subject to punishment by fine, imprisonment, or both. It is clear, therefore, that the Act applies to all public officials who are members of a governmental body. See, e.g., Tex. Att’y Gen. Op. No. GA-0019 (2003) (finding that a council within the executive branch of government that is directed by at least five members appointed by the administrative head of at least five agencies and which develops procedures that member agencies must follow in purchasing pharmaceuticals is “a governmental body that has supervision or control over public business is subject to the Open Meetings Act.”).

b. Are certain executive functions covered?

Any deliberation between a quorum of members of a governmental body at which any public business or public policy is discussed must be open. See the general language of Section 551.002 and the definition of “meeting,” in Section 551.001(4).

In Tex. Att’y Gen. Op. No. JM-1127 (1989), the Attorney General was asked if the Act is violated when a quorum of one commission attends a meeting of a separate body it created that is managed by its own board of directors. The Attorney General advised that “[m]ere physical presence of a quorum . . . in the same room without such deliberations does not establish a meeting” within the Act. Tex. Att’y Gen. Op. No. JM-1127 (1989). However, if the commission members “deliberate,” their attendance before the board will be a meeting of the commission. The Attorney General further warned that “[i]ndirect deliberations would occur when . . . commissioners speak to the . . . board in turn, addressing to it remarks intended for the other commissioners.” Id. at 6. Although Section 551.001(4)’s definition of “meeting” discusses a “deliberation between a quorum of a governmental body,” the Attorney General has advised that subcommittees including even a single member of a governmental body may be subject to the Act if the subcommittee discusses public business or policy over which the parent body has supervision or control. Tex. Att’y Gen. Op. No. JM-1072 (1989). An appellate court has also concluded that the Act applies to committees and subcommittees that supervise and control the parent governmental body’s public business or make recommendations that the governmental body routinely rubber-stamps. Willmann v. City of San Antonio, 123 S.W.3d 469, 478 (Tex. App.—San Antonio 2003, pet. denied) (“a governmental body does not always insulate itself from [the Act’s] application simply because less than a quorum of the parent body is present”).

c. Are only certain agencies subject to the act?

Section 551.001(3)(A) provides that an “agency within the executive branch of government that is directed by one or more elected or appointed members” is subject to the Act. See Tex. Att’y Gen. Op. No. GA-0098 (2003) (The Sulphur River Basin Authority, which satisfied the criteria set forth in Section 551.001(3)(A), is subject to the Act; noting that “Texas courts have long acknowledged that river authorities are subject to the Open Meetings Act.”). Certain functions of the Board of Pardons and Paroles are excluded from the Act (§ 551.080), as are certain meetings of the Texas Department of Insurance (Section 551.079), the Credit Union Commission (Section 551.081), The Finance Commission of Texas (Section 551.0811), certain school board meetings (Sections 551.082, 551.0821, and 551.083), certain meetings of the Texas Building and Procurement Commission (Sections 551.0726), and certain meetings of the board of directors of a municipal hospital, a municipal hospital authority, hospital district, or nonprofit health maintenance organization (Section 551.085).

2. Legislative bodies

Section 551.003 specifically provides that “the legislature is exercising its powers to adopt rules to prohibit secret meetings of the legislature, committees of the legislature, and other bodies associated with the legislature, except as specifically permitted in the constitution.” In In re The Texas Senate, 36 S.W.3d 119, 120 (Tex. 2000), the Texas Supreme Court stated that the Act “clearly covers the Committee of the Whole Senate.” Furthermore, a governmental body under the Act includes a committee within the executive or legislative branch of a state government that is directed by one or more elected or appointed members. Tex. Att’y Gen. Op. No. LO 97-058 (1997). A legislative body can violate the Act when it “deliberates through a series of closed meetings of members of less than a quorum.” Tex. Att’y Gen. Op. No. DM-95 (1992); see also Hitt v. Mabry, 687 S.W.2d 791, 796 (Tex. App.—San Antonio 1985, no writ) (the court upheld an injunction restraining the San Antonio Independent School District board of trustees from arriving at a decision affecting the District by way of private, informal telephone polls or conferences of the board members.)

3. Courts

The judiciary is excluded from the Act. See Tex. Gov’t Code§ 551.001(3)(A). In State ex. rel. White v. Bradley, 956 S.W.2d 725, 743-44 (Tex. App.—Fort Worth 1997), rev’d on other grounds, 990 S.W.2d 245 (Tex. 1999), the Fort Worth Court of Appeals found that a special court for removing a mayor, although consisting of the aldermen of the city, was not conducted by a governing body, and did not require that the removal proceeding strictly comply with the notice requirements of the Act. The court stated that “a careful reading of the Open Meetings Act reveals that courts, trials, and related court proceedings are not among the types of matters it governs.” Id. at 743.

4. Nongovernmental bodies receiving public funds or benefits

Although nongovernmental bodies receiving public funds or spending public funds are subject to the Texas Public Information Act, they are not subject to the Texas Open Meetings Act merely because they receive public funds. For example, the Attorney General held that a private athletic conference with some public members was subject to the Public Information Act but not the Open Meetings Act. Tex. Att’y Gen. Op. No. JM-116 (1983) (construing prior statutory provisions). In Tex. Att’y Gen. Op. No. DM-7 (1991), the Attorney General advised that a nonprofit corporation that provides services to senior citizens, is financed by private donations and state and federal loans and grants, and that is governed by a board of directors that is not selected by city or county officials, is not a governmental body subject to the Open Meetings Act. In Tex. Att’y Gen. Op. No. LO 98-040 (1998), the Attorney General advised that a nonprofit water supply corporation organized under the terms of Vernon Texas Civil Statute article 1434a is not subject to the Act. See also Tex. Att’y Gen. Op. No. JC-0407 (2001) (stating that nonprofit corporations established pursuant to the Texas Non-Profit Corporation Act, that assist local entities pursuant to contract, and that are not delegated governmental authority, are not subject to the Open Meetings Act).

In Commissioners’ Court of Hayes Cty. v. Dist. Judge, 506 S.W.2d 630, 636 (Tex. Civ. App.—San Antonio 1974, writ ref’d n.r.e.), conferences and discussion took place between a district judge, who does not come within the provisions of the Act, and the Commissioners’ Court, which does. The Commissioners’ Court and judge advised one another with regard to the probation budget for the judicial district, but the Commissioners’ Court did not take any conclusive action. The appellate court found that such conferences were not within the mandatory requirements of the Act.

6. Multi-state or regional bodies

Multistate or regional bodies are not specifically mentioned in the Act, although the definition of a “meeting” includes a deliberation between a quorum of a governmental body and “another person.” § 551.001(4). Such a body also may fit the definition of a “special district” covered by the Act. See Sierra Club v. Austin Trans. Study Policy Advisory Comm., 746 S.W.2d 298, 301 (Tex. App.—Austin 1988, writ denied) (a 17-member committee of state, county, regional and municipal public officials was a “special district” subject to the Act because it had decision-making powers).

7. Advisory boards and commissions, quasi-governmental entities

The Act does not cover advisory sub-units without rulemaking or quasi-judicial power. A city’s library board was not required to meet in a public place because it was not a rulemaking body and had no quasi-judicial function. Tex. Att’y Gen. Op. No. H-467 (1974). In Tex. Att’y Gen. Op. No. JM-1185 (1990), the Attorney General concluded that a community criminal justice council created by district judges under a Code of Criminal Procedure provision was advisory and not a governmental body subject to the Act. However, if a committee formed from members of a governmental body covered by the statute is considering matters that are pending before the parent body, then the committee must meet in public. Tex. Att’y Gen. Op. No. H-3 (1973); see also Tex. Att’y Gen. Op. No. JM-1072 (1989); Tex. Att’y Gen. Op. No. JC-0060 (1999) (the Attorney General opined that the initial work of a committee containing two members of a commissioners court and seven other individuals, which evaluated architectural firm applicants, did not fall under the Act because it appeared to be “an advisory body, without power to supervise or control public business.”); Tex. Att’y Gen. Op. No. H-994 (1977) (opining that the Act does apply if the committee meets to discuss public business or policy; but does not apply to a purely advisory body which has no power to supervise or control public business).

Municipal Zoning Advisory Committees; Nursing Advisory Committees. Pursuant to Tex. Loc. Gov’t Code. § 211.0075 (West 2016), a board or commission established by an ordinance or resolution adopted by the governing body of a municipality to assist the governing body in developing an initial comprehensive zoning plan or initial zoning regulations for the municipality, or a committee of the board or commission that includes one or more members of the board or commission, is subject to the Act. The nursing committee formed by the statewide health coordinating counsel also is subject to the Act. Tex. Health & Safety Code § 104.0155(e) (West 2017).

Property Owners’ Associations: The Act specifically is made applicable to certain property owners’ associations. Under Section 551.0015, a property owners’ association is subject to the Act if (1) membership in the association is mandatory for a defined class of owners of private real property in or adjacent to a county with a population of over 2.8 million, (2) the association has the power to make mandatory special assessments for capital improvements or mandatory regular assessments, and (3) the amount of the mandatory special or regular assessments is or has ever been based in whole or in part on the value at which the state or a local government body assesses the property. Tex. Gov’t Code§ 551.0015(a)(1).

8. Other bodies to which governmental or public functions are delegated

Boards in the executive or legislative department such as the State Text Book Committee and the Senate Subcommittee on Consumer Affairs are required to hold open meetings under the Act. See Tex. Att’y Gen. Op. No. M-136 (1967); Tex. Att’y Gen. Op. No. LA-84 (1974). In addition, the Athletic Council at the University of Texas at Austin is considered a governing body because it supervises public business. Tex. Att’y Gen. Op. No. H-438 (1974).

The Act has been applied to a county commissioners court when it is sitting as a board of equalization, Tex. Att’y Gen. Op. No. H-1000 (1977), and has been applied to breakfast meetings of the commissioners court (Tex. Att’y Gen. Op. No. H-785 (1976)). Among the bodies that have been found to be subdivisions or departments of a county or city having rulemaking or quasi-judicial authority are Boards of Firemen’s Relief and Retirement Fund Trustees (Tex. Att’y Gen. Op. No. MW-174 (1980)); hospital authorities (Tex. Att’y Gen. Op. No. H-544 (1975)); higher educational authorities created under Chapter 53 of the Texas Education Code (Tex. Att’y Gen. Op. No. MW-177 (1980)); and a grievance committee organized under what is now codified in portions of the Local Government Code (Tex. Att’y Gen. Op. No. GA-0051 (2003)). In addition, there may be statutes other than the Open Meetings Act that provide for open meetings. See Enterprise Co. v. City of Beaumont, 574 S.W.2d 786 (Tex. Civ. App.-Beaumont 1978, no writ).

9. Appointed as well as elected bodies

The Act makes no distinction between elected and appointed bodies so long as the governmental body has rulemaking or quasi-judicial authority. See, e.g., Tex. Att’y Gen. Op. No. JC-0060 (1999); Willmann, 123 S.W.3d at 478 (“A committee appointed by a governmental body constituting less than a quorum of its members may be subject to [the Act] because it falls either within a definition of the term ‘governmental body’ or as a subcommittee of a governmental body.”). Thus, for example, the Dallas Area Rapid Transit Board is subject to the Act. See Tex. Att’y Gen. Op. No. JM-595 (1986).

D. What constitutes a meeting subject to the law

1. Number that must be present

a. Must a minimum number be present to constitute a "meeting"?

Every gathering of a quorum of a governmental body, no matter how informal, to deliberate public business must be held in public after proper notice. For example, in Acker v. Texas Water Comm’n, 790 S.W.2d 299 (Tex. 1990), the Texas Supreme Court held that the Act’s requirement, that all “meetings” should be open to the public, is violated if two members of a three-member commission discuss a contested public issue while in a restroom. “When a majority of a public decision-making body is considering a pending issue, there can be no ‘informal’ discussion. There is either formal consideration of a matter in compliance with the . . . Act or an illegal meeting.” Id. at 300.

However, even without a quorum of the governing body, a committee of a governmental body may be subject to the Act if the committee supervises or controls public business or policy. Willmann, 123 S.W.3d at 478; Tex. Att’y Gen. Op. No. LO 97-058 (1997). The Fort Worth Court of Appeals departed from this rule in Tarrant Reg’l Water Dist. v. Bennett, 453 S.W.3d 51, 57-58 (Tex. App.—Fort Worth 2014, pet. denied) (“The legislature could not have been more clear. While a board’s meetings must be conducted in accordance with TOMA, meetings of the board’s committees in which less than a quorum of the board is present are not subject to TOMA’s open-meetings requirements.”)

The attorney general has also opined that a city council member violates the Act when he telephones individually a quorum of the council members to express his views about public business that has not been formerly considered by the council in an open session. Tex. Att’y Gen. Op. No. LO-95-055 (1995).

The Act applies to so-called walking quorums, where members of a governmental body intentionally meet in a series of small groups to avoid triggering the Act, but the aggregate number of members consulted adds up to a quorum. See Tex. Att’y Gen. Op. GA-326 (2005); see alsoForeman v. Whitty, 392 S.W.3d 265, 277 (Tex. App.—San Antonio 2012, no pet.).

Pursuant to Section 551.0415, however, a quorum of the governing body of a municipality may receive from municipal staff and a member of the governing body may make a report about items of community interest during a meeting of the governing body without having given notice of the subject of the report as required by this subchapter if no action is taken and, except as provided by Section 551.042, possible action is not discussed regarding the information provided in the report.

b. What effect does absence of a quorum have?

If a quorum is not present, no public business may be transacted. See Tex. Gov’t Code§ 551.101; see also Cox Enter. Inc. v. Bd. of Trustees of Austin Indep. Sch. Dist., 706 S.W.2d 956 (Tex. 1986); but see Hispanic Educ. Comm. v. Houston Indep. Sch. Dist., 886 F. Supp. 606, 610 (S.D. Tex. 1994) (where no quorum was present and there was no attempt to “take action,” the informal discussions were not “meetings of the board,” and there was no violation of the Act).

Although Section 551.001(4)’s definition of “meeting” discusses “a deliberation between a quorum of a governmental body,” the Attorney General has advised that subcommittees including even a single member of a governmental body may be subject to the Act if the subcommittee discusses public business or policy over which the parent body has supervision or control. Tex. Att’y Gen. Op. No. JM-1072 (1989). Also, some courts have found that “the Act would apply to meetings of groups of less than a quorum where a quorum or more of the body attempted to avoid the purposes of the Act by deliberately meeting in groups of less than a quorum in closed sessions to discuss and/or deliberate public business, and then ratifying their actions as a quorum in a subsequent public meeting.” Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433, 476 (W.D. Tex. 2001); United States v. City of Garland, Texas, 124 F. Supp. 2d 442, 446 & n.2 (N.D. Tex. 2000) (“Simply put, if there is no quorum, there is no meeting,” noting that “[m]embers of a governmental body, however, may not conspire to meet in numbers less than a quorum for the purpose of secret deliberations in violation of the [Act].”)

2. Nature of business subject to the law

The statute defines “deliberation” as “a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business.” Tex. Gov’t Code§ 551.001(2). Where there has been a “reciprocal giving and receiving of spoken words” about a matter of public business or within the governmental body’s jurisdiction, a meeting has occurred. Gardner v. Herring, 21 S.W.3d 767 (Tex. App.—Amarillo 2000, no pet.). The key is whether the members directly or indirectly discuss a matter among themselves. In Peapicker Inc. v. Reagan, 632 S.W.2d 674 (Tex. App.—Tyler 1982, writ ref’d n.r.e.), the commissioners court met to hear a report from a representative of a state agency. The court implied that if the commissioners had merely listened to the report without discussing or questioning there would be no deliberation and, hence, the Act would not be triggered. However, members of a governmental body cannot use questions addressed to a non-member to indirectly deliberate with another member. In Tex. Att’y Gen. Op. No. JM-1127 (1989), the Attorney General was asked if the Act is violated when a quorum of one commission attends a meeting of a separate body it created that is managed by its own board of directors. The Attorney General warned that “[i]ndirect deliberations would occur when . . . commissioners speak to the . . . board in turn, addressing to it remarks intended for the other commissioners.” Tex. Att’y Gen. Op. No. JM-1127 (1989); see also Tex. Att’y Gen. Op. No. JC-307 (2000) (a verbal exchange may include an exchange of written or other non-spoken words).

Nor can members of a governmental body avoid the requirements of the Act by individually signing a letter expressing their opinion on a matter of public policy over which the body has supervision or control. “If a quorum of a governmental body agrees on a joint statement on a matter of such business or policy, the deliberation by which that agreement is reached is subject to the requirements of the act, and those requirements are not necessarily avoided by avoiding the physical gathering of a quorum in one place at one time.” Tex. Att’y Gen. Op. No. DM-95 (1992). “[A] governing body that deliberates through a series of closed meetings of members of less than a quorum risks a finding by a trier of fact that either a violation of [Section 551.002] has occurred, or worse, that members have conspired to circumvent the act in violation of [Section 551.143].” Tex. Att’y Gen. Op. No. DM-95 (1992).

a. "Information gathering" and "fact-finding" sessions

Section 551.001(4) provides that the Act applies to certain gatherings “at which the members receive information from, give information to, ask questions of, or receive questions from a third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control.” See, e.g.Tex. Att’y Gen. Op. No. GA-0098 (2003) (“An informational meeting of the Sulphur River Basin Authority (the ‘Authority’) that is open only to the Authority’s invitees, including members of the press and community leaders, contravenes the Open Meetings Act if a quorum of members of the Authority is present or otherwise participates in the deliberations.”); Bexar Medina Atacosa Water Dist. v. Bexar Medina Atacosa Landowners’ Ass’n, 25 S.W.3d 459, 461-62 (Tex. App. - San Antonio 1999, pet. denied) (finding that an informational gathering that involved discussion and consideration was subject to the Open Meetings Act).

b. Deliberation toward decisions

Deliberations toward decisions may be subject to the Act. See Willmann, 123 S.W.3d at 472 (“[The Act] requires ‘openness at every stage of a governmental body’s deliberations’ because the citizens of Texas are entitled to know not only what government decided but also to observe how and why every decision is enacted.”) (citing Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 300 (Tex. 1990)). City of Port Isabel v. Pinnell, 207 S.W.3d 394, 406 (Tex. App.—Corpus Christi 2006, no pet.) (“Every regular, special, or called meeting or session of every governmental body shall be open to the public.”)(quoting Section 551.002).

3. Electronic meetings

a. Conference calls and video/Internet conferencing

The Act authorizes meetings by telephone conference only under certain circumstances. Such meetings may only be held if an emergency or public necessity exists and convening at one location is “difficult or impossible,” or the meeting is held by an advisory board. Tex. Gov’t Code§ 551.125(b). In addition, such meetings must comply with the Act’s notice requirements: the location in the notice must specify the usual place where the governmental body meets, the call must be audible to the public at such location and shall be tape-recorded, two-way communication must be provided, and the identification of each speaker must be clearly stated prior to speaking. Id. 551.125(c)-(f).

The Act also limits the circumstances under which meetings may be held by videoconference calls. Id. at § 551.127. A meeting of a state governmental body or a governmental body that extends into three or more counties may be held by videoconference call only if a majority of the quorum of the governmental body is physically present at one location of the meeting. Id. at § 551.127(c). Meetings of other governmental bodies may only be conducted by videoconference call if a quorum of the governmental body is physically present at one location of the meeting. Id. at § 551.127(b). Meetings by videoconference call must comply with the notice requirements applicable to other meetings, and also must specify the location where each participating member will be located, where the quorum is physically situated, and specify the intent to have a quorum present at that location. Id. at § 551.127(d), (e). The open portions of the videoconference must be visible and audible to the public at each location where participating members are located, and an audio recording must be made available to the public. Id. at § 551.127(f), (g). If technical difficulties render portions of a meeting by videoconference call inaccessible to the public at any remote location, the governmental body must recess or adjourn the meeting. Tex. Att’y Gen. Op. No. DM-480 (1998). The Attorney General has opined that the meeting of members must occur within the State of Texas. Tex. Att’y Gen. Op. No. JC-0487 (2002) (“[T]he Open Meetings Act prohibits the Board of Regents of the University of Texas System from holding a meeting of a quorum of its members in Mexico, regardless of whether the Board broadcasts the meeting by videoconferencing technology to all geographic areas in Texas where component institutions of the University of Texas System are located.”)

The Board of Pardons and Paroles may hold a hearing on clemency matters by telephone conference call. Tex. Gov’t Code§ 551.124. The governing body of an institution of higher education may meet by telephone conference call, so long as each part of a meeting that is required to be open to the public can be heard by the public at the body’s normal meeting place. SeeId. at § 551.121. Such telephone conference calls must be limited to special called meetings requiring “immediate action” when it is “difficult or impossible” to convene a quorum of the board, and they are subject to the notice requirements applicable to other meetings. The Texas Board of Criminal Justice may hold emergency meetings by telephone conference call. Id. at § 551.123. The Texas Higher Education Coordinating Board may hold an open meeting by telephone conference call or video conference call in order to consider a higher education impact statement if preparation thereof is to be provided under the rules of either the Texas House of Representatives or the Texas Senate. Id. at § 551.126.

A governmental body may also broadcast an open meeting over the Internet and must provide in the notice of the meeting the Internet site that broadcasts the meeting. Id. at § 551.128.

b. E-mail

The Act does not specifically address the treatment of e-mail. However, the Attorney General has stated that electronic mail exchanges can be included in the Act’s definition of deliberation. Tex. Att’y Gen. Op. JC-0307 (refusing to follow Texas case law which limited a “meeting” under the Act as an exchange of spoken words); see alsoAsgeirsson v. Abbott, 773 F. Supp. 2d 684 (W.D. Tex. 2011), aff’d, 696 F.3d 454 (5th Cir. 2012) (council member accused of violating the Act by exchanging emails among a quorum of council members to schedule a council meeting).

c. Text messages

In Harper v. Best, the Waco Court of Appeals left open the possibility of text messages triggering the substantive provisions of the Act. See 493 S.W.3d 105, 117 (Tex. App.—Waco 2016, pet. granted). The messages supplied as evidence in Harper showed conversations relating to official business between three board members. Id. at 117. One message also contained a reference to a fourth member, and four members would have constituted a quorum of that particular body. Id. “Assuming without deciding that the reference established a ‘walking quorum,’” the court nonetheless found that no “deliberation” had occurred to trigger the Act, because “[n]othing was presented to show that an exchange occurred [with the fourth board member] about an issue within the jurisdiction of the board or any public business.” Id.

d. Instant messaging

e. Social media and online discussion boards

In an interim report to the 82nd Legislature in 2010, the Senate Committee on State Affairs addressed challenges in applying the Act presented by new technologies, noting: “under the current interpretations of the Act, a quorum would exist if a majority of the governmental body discusses public business on a Facebook Wall . . . A similar situation could arise with Twitter where members can have public or private accounts.” Senate Committee on State Affairs, Interim Report to the 82nd Legislature at 59 (2010).

E. Categories of meetings subject to the law

1. Regular meetings

a. Definition

Every gathering, no matter how informal, of a quorum of a governmental body to deliberate public business must be held in public after proper notice. Acker v. Texas Water Comm’n, 790 S.W.2d 299, 300 (Tex. 1990). Even breakfast sessions fall within this definition. Tex. Att’y Gen. Op. No. H-785 (1976).

b. Notice

“The notice of a meeting of a governmental body must be posted in a place readily accessible to the general public at all times for at least 72 hours before the scheduled time of the meeting, except as provided by [S]ections 551.044-551.046.” Tex. Gov’t Code§ 551.043(a). This may be satisfied in cases where the Act specifically requires or allows a governmental body to post notice of meetings on the Internet if the governmental body: (1) makes a good-faith attempt to continuously post the notice on the Internet during the prescribed period, and (2) complies with any duty to physically post notice at a particular location, where such physically posted notice is readily accessible to the general public during normal business hours. Id. at § 551.043(b). However, Section 551.044(a) increases the time for notice from 72 hours to 7 days before meetings of a state board, commission, department, or officer having statewide jurisdiction, notice of which the secretary of state must post on the Internet. This section does not apply to the Texas Department of Insurance (as regards certain proceedings and activities) or the governing board of an institution of higher education. Id. at § 551.044(b). A governmental body that recesses an open meeting to the following regular business day is not required to post notice “if the action is taken in good faith and not to circumvent the Act.” Id. at § 551.0411(a). Where a catastrophe occurs, as defined in Section 551.0411(c), and the notice of an open meeting was otherwise properly posted under Section 551.041, then such meeting may convene in a convenient location within 72 hours pursuant to Section 551.045 if the action is taken in good faith and not to circumvent the Act. Id. at § 551.0411(b). In Rivera v. City of Laredo, 948 S.W.2d 787 (Tex. App.—San Antonio 1997, writ denied), the court found that where a city recesses from a noticed meeting to reconvene more than one day later, the city must post a new notice, regardless of whether the city believed the second meeting is merely a continuation of the previous one. See also Tex. Att’y Gen. Op. No. DM-482 (1998).

The notice must be given to the general public. In some instances the news media must be given special notice by telephone or telegraph if they have requested it and have agreed to reimburse the district for the cost of providing the special notice. See Tex. Gov’t Code§ 551.052 (school districts); § 551.047 (emergency meetings and where agenda has been supplemented).

A state governmental body shall provide notice of each meeting to the secretary of state, who shall then “post the notice on the Internet.” Id. at § 551.048. Furthermore, the “secretary of state shall provide during regular office hours a computer terminal at a place convenient to the public in the office of the secretary of state that members of the public may use to view the notice.” Id. at § 551.048. “A county governmental body shall post notice of each meeting on a bulletin board at a place convenient to the public in the county courthouse.” Id. at § 551.049. “A municipal governmental body shall post notice of each meeting on a bulletin board at a place convenient to the public in the city hall.” Id. at § 551.050. “A school district shall post notice of each meeting on a bulletin board at a place convenient to the public in the central administrative office of the district” and shall give notice by telephone or telegraph to any news media requesting such notice and which has agreed to reimburse the district for the cost of providing the special notice. Id. §§ 551.051-.052.

The governing board of a single institution of higher education, in addition to providing any other notice required under the Act, must post notice of each meeting at the county courthouse and in a student newspaper (if an issue of the newspaper is published between the time of posting and the time of the meeting), and may post notice at another place convenient to the public. Id. at § 551.055.

A governmental body of a water district or other district or political subdivision covering all or part of four or more counties must have a notice posted at a place convenient to the public in its administrative office or political subdivision, must furnish the notice to the Secretary of State (who must post the notice on the Internet and provide during regular office hours a computer terminal at a place convenient to the public in the office of the secretary of state that members of the public may use to view the notice), and must also furnish the notice to the county clerk of the county in which the administrative office of the district or political subdivision is located (who must post the notice on a bulletin board at a place convenient to the public in the county courthouse). Id. at § 551.053.

The governing body of a water district, other district, or other political subdivision [not covered by the preceding Section 551.053] must post the notice at a place convenient to the public in its administrative office, and must also provide the notice to the county clerk or clerks of the county or counties in which the district or political subdivision is located. The county clerk(s) must post the notice on a bulletin located at a place convenient to the public in the county courthouse. Id. at § 551.054.

The following governmental bodies and economic development corporations must post notice of a meeting on the internet: a) a municipality, b) a county, c) a school district, d) the governing body of a junior college, and e) a development corporation. This posting requirement is in addition to the other posting requirements. This section applies only to those governmental bodies or economic development corporations which maintain websites. A governmental body or economic development corporation which makes a good faith attempt to comply with this section is not affected by a technical problem beyond its control. Id. at § 551.056.

In Smith County v. Thornton, 726 S.W.2d 2, 3 (Tex. 1986), the Texas Supreme Court held that Section 551.053 “requires literal compliance.” In that case, notice of a Monday Commissioners’ Court meeting was posted Friday in the county courthouse, which was locked over the weekend. The Texas Supreme Court held that this notice did not comply with the Act because it “was not posted in a place readily accessible to the general public for 72 hours.” Id. However, the Texas Supreme Court has ruled that the Act’s notice requirements can be satisfied by dual posting. In City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762 (Tex. 1991), the city posted notice of a council meeting in two locations-on a bulletin board inside City Hall (which is locked each night) and on a kiosk in front of City Hall’s main entrance. The inside notice met the location requirement of Section 551.050. The kiosk notice met the requirement of Section 551.043, that notice “be posted in a place readily accessible to the general public at all times for at least 72 hours.” Id. at 766. The Texas Supreme Court rejected an argument that the notice requirements of Section 551.050 and Section 551.043 be read together to require that one notice be available inside City Hall for at least 72 hours. “[T]he legislative scheme does not require a single notice that must satisfy both subsections but permits dual notice.” Id. at 768. One dissenting justice criticized this position at length. Id. at 779-80 (J. Mauzy, dissenting).

The written notice must indicate the date, hour, place, and subject of each meeting held by the governmental body. Tex. Gov’t Code§ 551.041. The notice must specifically disclose the subjects to be considered at the upcoming meeting. Cox Enter. Inc., 706 S.W.2d at 959. In addition, as public interest in a matter increases, the Act requires correspondingly more detailed descriptions of the subject to be discussed. Id. (Texas Supreme Court held that the label of “personnel” inadequately described the school board’s intention to hire a new school superintendent, as that issue was one of special interest; “litigation” is insufficient to describe consideration of a major pending desegregation lawsuit.). While a governmental body may permit members of the public to offer comments regarding matters not specified in the posted meeting notice, prior knowledge of subject matters on which the public will comment may give rise to an obligation on the part of the governmental body to tailor its notice to that knowledge. Tex. Att’y Gen. Op. No. JC-0169 (2000).

Several other courts have also addressed the sufficiency of written notices: Sokolow v. League City, 37 F. Supp. 2d 940, 946-47 (S.D. Tex. 1999) (notice of meeting containing “discuss and possibly take action on the duties, responsibilities of the City Attorney” was sufficient to give notice of a meeting in which city council voted to terminate city attorney); City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762 (Tex. 1991) (notice of a meeting to consider a condemnation ordinance need not give a metes and bounds description of land to be condemned; a list of county blocks that might be affected is sufficient); Odessa Tex. Sheriff’s Posse, Inc. v. Ector County, 215 S.W.3d 458, 472 (Tex. App.—Eastland 2006, pet denied) (The test for the adequacy of a meeting notice under the Act is whether the notice is “sufficiently specific to alert the general public to the topic to be considered.”); Point Isabel Indep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176, 179-82 (Tex. App.—Corpus Christi 1990, writ denied) (absent a showing of some special interest, the words “employment of personnel” adequately notified the public that the school board would consider, among other things, filling the position of band director; however, such description was too general to adequately inform the public of the decision to name three school principals because there was “special public interest” in these positions); Mayes v. City of De Leon, 922 S.W.2d 200, 204 (Tex. App.—Eastland 1996, writ denied) (mere recitation of “personnel” was insufficient notice because the public has a special interest relating to the employment of its police chief); Finlan v. City of Dallas, 888 F. Supp. 779, 790 (N.D. Tex. 1995) (where the upcoming closed meeting discussed a proposed $141 million arena and the potential for two major sports teams moving to the suburbs, the notices, which “merely parroted” the statute with phrases like “Deliberation Regarding Real Property under Sec. 551.072 of the Texas Government Code” and “Attorney Consultation under Sec. 551.071 of the Texas Government Code,” were “woefully inadequate” and considered by the court “to be no notice at all”). The specificity of notice is tied to the level of public interest involved, not to the private interests of the individuals most likely to be affected by the proposed government action. Stockdale v. Meno, 867 S.W.2d 123,125-26 (Tex. App.—Austin 1993, writ denied); Rettberg v. Texas Dept. of Health, 873 S.W.2d 408, 411-12 (Tex. App.—Austin 1994, no writ).

Actions taken in violation of the Act, including failure to give adequate notice, are voidable. Tex. Gov’t Code§ 551.141. In Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975), the Texas Supreme Court approved of a lower court invalidating the decisions of the Lower Colorado River Authority to change utility rates because it violated the notice provisions of the state’s open meeting law. See also Piazza v. City of Granger, 909 S.W.2d 529, 534-35 (Tex. App.—Austin 1995, no writ) (holding that the city violated the 72 hours’ notice requirement for meeting at which a policeman was terminated thereby entitling him to injunctive relief in the form of reinstatement, back pay, and attorneys’ fees); Meeker v. Tarrant County College Dist., 317 S.W.3d 754, 759 (Tex. App.—Fort Worth 2010, pet. denied) (the Act “does not state that governmental acts in violation of [the Act] are void or void ab initio”). In addition, an interested person, including a member of the news media, may seek mandamus relief or an injunction to stop, prevent, or reverse violations or threatened violations of the Act. Tex. Gov’t Code§ 551.142(a); City of Elsa v. Gonzalez, 325 S.W.3d 622, 627 (Tex. 2010).

Also, criminal penalties exist for a member of a governing body who, in connection with a closed meeting, knowingly violates the Act. Tex. Gov’t Code§ 551.144(a). Participation in such a meeting, among other things, is a misdemeanor punishable by a $100 to $500 fine, one to six months imprisonment in the county jail, or both. Id. at (b). The same fine and punishment range exist for governmental body members who knowingly conspire to circumvent the Act by meeting in numbers less than a quorum to deliberate in secret. Id.; Tex. Gov’t Code § 551.143. The Beaumont Court of Appeals upheld the constitutionality of Section 551.143 in State v. Doyal, noting that “[t]he statute provides reasonable notice of the prohibited conduct,” and “is reasonably related to the State’s legitimate interest in assuring transparency in public proceedings.” No. 09-17-00123-CR, 2018 WL 761011 at *5 (Tex. App.—Beaumont Feb. 7, 2018, not pet. h.).

c. Minutes

The governmental body must “prepare and keep minutes or make a tape recording of each open meeting of the body.” Id. at § 551.021(a). The minutes must state the subject matter of each deliberation and must indicate each vote, order, decision, or other action taken by the governmental body. Id. at § 551.021(b).

The minutes and tape recordings of an open meeting are public records and must be made available for public inspection and copying on request to the chief administrative officer of the governmental body or the officer’s designee. Id. at § 551.022. The minutes of a public meeting of a governmental body are public records when entered, are public in whatever form they exist, and public access may not be delayed until formal approval is obtained. Tex. Atty. Gen. Op. ORD.-06192 (2011) (finding draft minutes must be made available even if they had not been approved by the board).

2. Special or emergency meetings

a. Definition

An emergency meeting can be called in the event of (1) an imminent threat to public health and safety, or (2) a reasonably unforeseeable situation. Id. at § 551.045(a)-(b). In the event of such a meeting, notice can be given up to two hours prior to the meeting. Id. at § 551.045(a); Rogers v. State Bd. of Optometry, 619 S.W.2d 603, 604 (Tex. App.—Eastland 1981, no writ).

Special or emergency meetings cannot be held in the absence of a bona fide emergency, and only if the meetings are properly noticed. Harris Cty. Emergency Serv. Dist. # 1 v. Harris Cty. Emergency Corps., 999 S.W.2d 163, 167 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

b. Notice requirements

“The notice of a meeting of a governmental body must be posted in a place readily accessible to the general public at all times for at least 72 hours before the scheduled time of the meeting, except as provided by Sections 551.044-551.046.” Tex. Gov’t Code§ 551.043(a).

Notice is given to the general public because the Open Meetings Act was enacted to ensure that the public has the opportunity to be informed concerning the transactions of public business. Matagorda City Hosp. Dist. v. City of Palacios, 47 S.W.3d 96 (Tex. App.—Corpus Christi 2001, no writ).

Notice is also given to news media that have (1) previously filed a request containing all pertinent information for the special notice, and (2) agreed to reimburse the government body for the cost of providing the special notice. Tex. Gov’t Code§ 551.047. Notice shall be given notice either by telephone or telegraph. Id.

A state governmental body shall provide notice of each meeting to the Secretary of State for posting on the Internet. Id. at § 551.048. Furthermore, the “Secretary of State shall provide during regular office hours a computer terminal at a place convenient to the public in the office of the secretary of state that members of the public may use to view the notice.” § 551.048. A county governmental body is required to post notice of meetings on conveniently placed bulletin boards in the county courthouse. Id. at § 551.049. Notices of a municipality’s meetings are posted on a bulletin board in the city hall. Id. at § 551.050. A school district shall post notice of its meetings “central administrative office of the district.” Id. at § 551.051. News media requesting notice and agreeing to reimburse for the associated costs shall receive it via telephone or telegraph. Id. §§ 551.051-.052.

The governing board of a single institution of higher education, in addition to providing any other notice required under the Act, must post notice of each meeting at the county courthouse and in a student newspaper (if an issue of the newspaper is published between the time of posting and the time of the meeting), and may post notice at another place convenient to the public. Id. at § 551.055.

A governmental body of a water district or other district or political subdivision covering all or part of four or more counties must (1) have a notice posted at a place convenient to the public in its administrative office or political subdivision; (2) furnish the notice to the Secretary of State (who must post the notice on the Internet and provide during regular office hours a computer terminal at a place convenient to the public in the office of the secretary of state that members of the public may use to view the notice); and (3) also furnish the notice to the county clerk of the county in which the administrative office of the district or political subdivision is located (who must post the notice on a bulletin board at a place convenient to the public in the county courthouse). Id. at § 551.053.

The governing body of a water district, other district, or other political subdivision [not covered by the preceding Section 551.053] must post the notice at a place convenient to the public in its administrative office, and must also provide the notice to the county clerk or clerks of the county or counties in which the district or political subdivision is located. Id. at § 551.054. The county clerk(s) must post the notice on a bulletin located at a place convenient to the public in the county courthouse. Id.

The subject of each meeting, the date, the hour, and the place must be included in each notice. Id. at § 551.041. The subject matter to be discussed must be described in highly specific detail. Id. at § 551.045(c); Point Isabel Indep. Sch. Dist., 797 S.W.2d at 180.

The notice must also state the reason for the emergency, clearly identifying the emergency or urgent public necessity. See Tex. Att’y Gen. Op. No. JM-1037 (1989); Tex. Gov’t Code§ 551.045(c); Point Isabel Indep. Sch. Dist., 797 S.W.2d at 180; Piazza, 909 S.W.2d at 529, 533-34 (“Lack of confidence” in the city’s only police officer did not constitute grounds for an “emergency” meeting under the Act, as the notice failed to describe an unforeseeable situation requiring immediate action.). Likewise, if a supplemental notice is posted at least two hours before the meeting listing additional discussion subjects, the supplemental notice must express the “emergency” or “urgent public necessity” requiring consideration of such additional subjects. Tex. Gov’t Code§ 551.045(c).

Actions taken by governmental body at a meeting convened in violation of the Act are voidable. Piazza, 909 S.W.2d at 534. The statute authorizes holding meetings with only two hours’ notice only in emergencies as the statute defines. Tex. Gov’t Code § 551.045(a)-(b); Harris Cty. Emergency Serv. Dist. # 1, 999 S.W.2d at 167. Action in violation of emergency notice provisions cannot be validated simply by ratifying the minutes of the emergency meeting. Tex. Att’y Gen. Op. No. JM-985 (1988).

c. Minutes

Minutes or tape recordings must be kept if the meeting is open. Tex. Gov’t Code § 551.021. Minutes or tape recordings of each open meeting of the body must state the subject of each deliberation and indicate each vote, order, decision or other action taken. Tex. Gov’t Code§ 551.021(b). A closed meeting’s certified agenda must include (1) a statement of the subject matter of each deliberation, (2) a record of any further action taken, and (3) an announcement by the presiding officer at the beginning and the end of the meeting indicating the date and time. Id. at § 551.103. A tape recording of a closed meeting must include announcements by the presiding officer at the beginning and the end of the meeting indicating the date and time. Id.

Minutes or tape recordings of an open meeting are public records and shall be available for public inspection and copying on request to the government body’s chief administrative officer or the officer’s designee. Id. at § 551.022. The exception is for closed meetings for which a certified agenda or tape recording exists. Id. at § 551.103. The certified agenda or tape of a closed meeting is available for public inspection and copying only under a court order issued under certain circumstances. Id. at § 551.104(c).

3. Closed meetings or executive sessions

Under certain circumstances, a closed meeting is permitted under the Act. However, before a governmental body can meet in a closed session, a quorum of the body first must convene in an open meeting for which proper notice has been given. Id. at § 551.101. The presiding officer must then publicly announce that a closed session will be held and identify what sections of the Act authorize the holding of such a session. Id. at § 551.101; see also Lone Star Greyhound Park Inc. v. Texas Racing Comm’n, 863 S.W.2d 742, 747 (Tex. App.—Austin 1993, pet. denied) (holding that failure to identify the section number of the exemption not fatal, where the presiding officer announced a briefing by “our legal staff” and reference to the content of the exemption provided sufficient identification of the applicable section of the Act). Notice of the attorney consultation exemption does not require disclosure of the “particulars of litigation” since this would defeat the very purpose of the exemption. Id.; see also Cox Enter. Inc., 706 S.W.2d at 959 (A governmental body “is not expected to disclose litigation strategy.”). If one of the exceptions to the Act does not apply and the governmental body holds a closed meeting anyway, then the closed meeting is violative of the statute regardless of whether that body complied with the procedural steps. Finlan, 888 F. Supp. at 783. In addition, a prior action taken in violation of the Act may not be retroactively ratified. Mayes, 922 S.W.2d at 204 (although the governmental body may vote to take the same action as it originally intended to do at the prior meeting, that action may not be given retroactive effect); Fielding v. Anderson, 911 S.W.2d 858, 864-65 (Tex. App.—Eastland 1995, writ denied) (“[T]he law is clear that a governmental body may not ratify its prior illegal acts.”).

A closed session of a public meeting may be continued only until the following day. Tex. Att’y Gen. Op. No. JC-0285 (2000). The continuation must be announced in open session on both the day of the original meeting and the new date of the meeting. Tex. Att’y Gen. Op. No. JC-0285 (2000) (citing Tex. Att’y Gen. Op. No. DM-482 (1998). The continuation of a closed session to any day other than the following day would require a re-posting of the session’s notice. Id. A final action, decision, or vote on a matter deliberated in a closed meeting may only be made in an open meeting that is held in compliance with the notice provisions. Tex. Gov’t Code§ 551.102; Thompson v. City of Austin, 979 S.W.2d 676, 685 (Tex. App.—Austin 1998, no pet.).

a. Definition

Closed sessions can be held if an authorizing section of the Act is specified. Tex. Gov’t Code §551.101 There are currently over 20 exceptions listed in the Government Code. Seeid. at § 551.071 et seq.

b. Notice requirements

The presiding officer must publicly announce at an open meeting that a closed session will be held.

Notice of an open meeting at which the announcement of a closed meeting will be made must be posted in a public place 72 hours before the scheduled time of the open meeting. Id. at § 551.043; Id. at § 551.101.

The notice must be given to the general public. Id. at § 551.041. In some instances the news media must be given special notice by telephone or telegraph if they have both requested it and agreed to reimburse the governing body for the cost of providing the special notice. Id. at § 551.052 (stating the special notice required of school districts); Id. at § 551.047 (stating the rule for noticing emergency meetings or when a meeting agenda has been supplemented).

A state governmental body shall provide notice of each meeting to the secretary of state, who shall then “post the notice on the Internet.” Id. at § 551.048. Furthermore, the “secretary of state shall provide during regular office hours a computer terminal at a place convenient to the public in the office of the secretary of state that members of the public may use to view the notice.” Id. at § 551.048. “A county governmental body shall post notice of each meeting on a bulletin board at a place convenient to the public in the county courthouse.” Id. at § 551.049. “A municipal governmental body shall post notice of each meeting on a bulletin board at a place convenient to the public in the city hall.” Id. at § 551.050. “A school district shall post notice of each meeting on a bulletin board at a place convenient to the public in the central administrative office of the district” and shall give notice by telephone or telegraph to any news media requesting such notice after agreeing to reimburse the district for the cost of providing the special notice. Id. §§ 551.051-.052.

The governing board of a single institution of higher education, in addition to providing any other notice required under the Act, must post notice of each meeting at the county courthouse and in a student newspaper. Id. at § 551.055. The school can also post notice at another place convenient to the public. Id.

A governmental body of a water district or other district or political subdivision covering all or part of four or more counties must (1) post notice at a place convenient in its administrative office or political subdivision; (2) furnish the notice to the Secretary of State (who must post the notice on the Internet and provide during regular office hours a computer terminal at a place convenient to the public in the office of the secretary of state that members of the public may use to view the notice); and (3) furnish the notice to the county clerk of the county in which the administrative office of the district or political subdivision is located. Id. at § 551.053. The clerk must then post notice on a bulletin board in a convenient place in the county courthouse. Id.

The governing body of a water district, other district, or other political subdivision [not covered by the preceding Section 551.053] must post the notice at a place convenient to the public in its administrative office and provide the notice to the county clerk or clerks of the county or counties in which the district or political subdivision is located. Id. at § 551.054. The county clerk(s) must post the notice on a bulletin located at a place convenient to the public in the county courthouse. Id.

The following governmental bodies and economic development corporations must post notice of a meeting on the internet: (a) a municipality, (b) a county, (c) a school district, (d) the governing body of a junior college, and (e) a development corporation. This posting requirement is in addition to the other posting requirements. This section applies only to those governmental bodies or economic development corporations which maintain websites. A governmental body or economic development corporation which makes a good faith attempt to comply with this section is not affected by a technical problem beyond its control. Id. at § 551.056.

The written notice must indicate the date, hour, place, and subject of each meeting held by the governmental body. Id. at § 551.041. The notice must specifically disclose the subjects to be considered at the upcoming meeting. Cox Enter. Inc., 706 S.W.2d at 959. In addition, as public interest in a matter increases, the Act requires correspondingly more detailed descriptions of the subject to be discussed. Id. Therefore, notice should specifically and fully disclose the subjects to be considered. Finlan, 888 F. Supp. at 783. As public interest in a particular subject of a closed meeting increases, the notice must become more specific than for open meetings. Id.

Criminal penalties apply for a member of a governing body who, in connection with a closed meeting, knowingly violates the sections of the Act concerning closed meetings. Tex. Gov’t Code§ 551.144. Participation in such a meeting, among other things, is a misdemeanor punishable by a $100 to $500 fine, one to six months imprisonment in the county jail, or both. Id. The same fine and punishment range exist for governmental body members who knowingly conspire to circumvent the Act by meeting in numbers less than a quorum to deliberate in secret. Id. at § 551.143.

c. Minutes

Except for private consultations permitted under Section 551.071, the governmental body must keep a certified agenda or make a tape recording of the proceedings of each closed meeting. Id. at § 551.103(a). “This provides a method of verifying in court proceedings that closed meetings comply with” the Act. Finlan, 888 F. Supp. at 783 (citing Tex. Att’y Gen. Op. No. JM-840 (1988)). The presiding officer must certify that the agenda is a true and correct record of the proceedings. Tex. Gov’t Code§ 551.103(b). The agenda must state the subject matter of each deliberation and include a record of any further action taken as well as the date and time of the beginning and end of the meeting. Id. at § 551.103(c). A tape recording must include the presiding officer announcing the date and the times of the beginning and end of the meeting. Id. at § 551.103(d).

A member of a governmental body may not copy for his own use a tape recording of a closed meeting in which he participated; nor may the governmental body permit him to do so. Tex. Att’y Gen. Op. No. LO 98-033 (1998). A member of the governmental body who did not attend the closed meeting may review its tape recording. Tex. Att’y Gen. Op. No. JC-0120 (1999). The governing body may also adopt procedures for the review. Id. The governing body may not, however, provide the member with a copy of the tape recording. Id. The governmental body may not permit a former member to review the tape recording of a closed meeting once the member has left office. Id.

A certified agenda or tape recording must be preserved for at least two years after the meeting or (if an action is brought within that period) for as long as litigation involving the meeting is pending. Tex. Gov’t Code§ 551.104(a). These tapes are confidential unless a court rules otherwise in an action under the Act. Finlan, 888 F. Supp. at 783; see also Tex. Gov’t Code§ 551.104(c) (mandating that the certified agenda or tape of a closed or executive session shall be made available for public inspection and copying only upon court order in an action brought under the Act). A governmental body member may be found guilty of a Class C misdemeanor if he participates in a closed meeting knowing that a certified agenda is not being kept or a tape recording is not being made. Tex. Gov’t Code§ 551.145.

Penalties exist for anyone who, without lawful authority, knowingly makes public the certified agenda or tape recording of a closed meeting. Id. at § 551.146. A violator is liable to a person injured or damaged by the disclosure for actual damages, court costs, attorneys’ fees, and possibly even punitive damages. Id. The offense is also a Class B misdemeanor. Id.

Section 551.146(c) outlines good faith defenses to either a civil or criminal action brought under Section 551.146. Nothing in Section 551.146 prohibits governmental body members from making public statements about the subject matter of executive sessions. Tex. Att’y Gen. Op. No. JM-1071 (1989) (construing a similar predecessor provision).

d. Requirement to meet in public before closing meeting

Before a governmental body can meet in a closed session, a quorum of the body first must convene in an open meeting for which proper notice has been given. During such open meeting, the presiding officer must publicly announce that a closed session will be held and identify what sections of the Act authorize the holding of such a closed session. Id. at § 551.101.

e. Requirement to state statutory authority for closing meetings before closure

Failure to identify the section number of the exemption is not fatal. See Lone Star Greyhound Park Inc. v. Texas Racing Comm’n, 863 S.W.2d 742, 747 (Tex. App.—Austin, 1993, writ denied) (where the presiding officer announced a briefing by “our legal staff,” reference to the content of the exemption provided sufficient identification of the applicable section of the Act).

f. Tape recording requirements

The governmental body is required to either keep minutes or make a tape recording of each meeting of the open body. Tex. Gov’t Code§ 551.021(a). The minutes must include the subject of each deliberation and indicate each action taken. Id. at § 551.021(b). Open meeting minutes and tape recordings are public records and shall be made available to the public on proper request. Id. at § 551.022.

F. Recording/broadcast of meetings

A person in attendance may record all or any part of an open meeting by means of a tape recorder, video camera, or other means of aural or visual reproduction. Tex. Gov’t Code § 551.023(a). However, the governmental body “may adopt reasonable rules to maintain order at a meeting” so long as the rules may not “prevent or unreasonably impair a person from exercising a right granted under Subsection (a).” Id. at § 551.023(b).

1. Sound recordings allowed

A person in attendance may record all or any part of an open meeting by means of a tape recorder, video camera, or other means of aural or visual reproduction. Tex. Gov’t Code§ 551.023(a). The use of tape recorders are permitted at public meetings but not at executive sessions of same public bodies. Zamora v. Edgewood Indep. School Dist., 592 S.W.2d 649 (Tex. Civ. App.—Beaumont 1979, writ ref’d n.r.e.) (member of board of trustees for school district was not entitled to tape record proceedings of board in executive session against wishes of majority of the board)

2. Photographic recordings allowed

G. Access to meeting materials, reports and agendas

The minutes and recordings of an open meeting are explicitly designated public records, “and shall be available for public inspection and copying on request to the governmental body’s chief administrative officer or the officer’s designee.” Tex. Gov’t Code § 551.022.

Educational institutions, including university systems and junior college districts, are required to post any non-confidential written agenda or related supplemental materials to the internet, in advance of the applicable meeting. Tex. Gov’t Code §§ 551.1281, 551.1282.

Section 551.104 provides for access to the certified agenda and recording of executive sessions in litigation involving an alleged violation of the Act.

H. Are there sanctions for noncompliance?

For knowingly conspiring to circumvent the open meetings law by meeting in groups of less than a quorum, for improperly closing a meeting or participating in an improperly closed meeting, a member of a governmental body is guilty of a misdemeanor, punishable with a fine between $100 and $500 and/or confinement in county jail for one to six months. Attorneys’ fees can be recovered against either party. Action taken at an improperly closed meeting is voidable. Participation in a closed meeting knowing a certified agenda of the meeting is not being kept or that the meeting is not being recorded is a misdemeanor. One who discloses a certified agenda or tape recording of a properly closed meeting is guilty of a misdemeanor and is liable for actual damages, exemplary damages and attorneys’ fees. Tex. Gov’t Code§ 551.141-146.

II. Exemptions and other legal limitations

A. Exemptions in the open meetings statute

1. Character of exemptions

If a governmental body is subject to the Act, there is a presumption that all meetings will be open unless some exception applies. The exceptions are found in various provisions of the Act. To be sure, these exceptions are not “magic talismans that can be dragged out every time a body subject to the [Act] wants to have a secret meeting.” Finlan, 888 F. Supp. at 790. Further, these exceptions are narrowly drawn. Save Our Springs Alliance v. Austin Indep. Sch. Dist., 973 S.W.2d 378, 381 (Tex. App-Austin 1998, no writ).

A handful of exceptions apply generally to all governmental bodies. The most common are the exception for consulting with an attorney (Tex. Gov’t Code§ 551.071), the exception concerning certain matters pertaining to real property (Id. at § 551.072), and the personnel matters exception (Id. at § 551.074). Less common exceptions allow governmental bodies to deliberate in private regarding prospective gifts (Id. at § 551.073), Texas growth fund discussions to obtain information on investments (Id. at § 551.075), security devices (Id. at § 551.076), licensing test items (Id. at § 551.088), and certain economic development negotiations (Id. at § 551.087). Several other exceptions apply only to certain specified governmental bodies. Also, Section 551.084 of the Act permits a governmental body that is investigating a matter to exclude a witness from a hearing during examination of another witness in the investigation. Id. at § 551.084.

Although these exceptions are discretionary, they are routinely invoked by governmental bodies.

2. Description of each exemption

The exception for consulting with an attorney permits a governmental body and its attorney to consult in private only when the body seeks the attorney’s advice with respect to pending or contemplated litigation, settlement offers, or matters where the duty of the attorney to the governmental body under the Texas Rules of Disciplinary Conduct clearly conflicts with the Act. Id. at § 551.071. Section 551.071 incorporates the attorney-client privilege. Olympic Waste Servs. v. City of Grand Saline, 204 S.W.3d 496, 502 (Tex. App.—Tyler 2006, no pet.); see also Tex. Att’y Gen. Op. No. JC –0233 (2000). A consultation under this provision is still a meeting, and subject to the notice requirements of the Act. Tex. Att’y Gen. Op. No. JC-0057 (1999). While the Act permits consultation by a governmental body with its attorney in a closed meeting to receive advice on the legal issues raised by a proposed contract, the Act does not authorize discussion of “the merits of a proposed contract, financial considerations, or other non-legal matters related to the contract merely because its attorney is present.” Tex. Att’y Gen. Op. No. JC-0233 (2000).

The real property exception permits closed meetings to discuss “the purchase, exchange, lease, or value of real property if deliberation in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third person.” Tex. Gov’t Code§ 551.072; Save Our Springs Alliance, 973 S.W.2d at 382

The personnel matters exception permits a governmental body to hold a closed meeting “to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee” or “to hear a complaint or charge against an officer or employee” unless the officer or employee requests a public hearing. Tex. Gov’t Code§ 551.074. A 1997 amendment to the Act provides a similar exception for meetings of the commissioners court of a county “to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a member of an advisory body” or “to hear a complaint or charge against a member of an advisory body” unless the individual who is the subject of the deliberation or hearing requests a public hearing. Id. at § 551.0745.

The prospective gift exception permits closed meetings “to deliberate a negotiated contract for a prospective gift or donation to the state or the governmental body if deliberation in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third person.” Id. at § 551.073.

The Texas growth fund exception permits closed meetings to confer with one or more employees of the Texas growth fund or with a third party in an open meeting if the only purpose of the conference is to receive information or to question employees or third parties relating to investment in certain business entities the disclosure of which would give advantage to a competitor. Id. at § 551.075. Only meetings relating to either investments in private business entities or investments in publicly traded business entities that need not be registered (under the Securities Exchange Act of 1934) may be closed under this section.

The security exception permits a governmental body to deliberate in private about “deployment, or specific occasions for implementation, of security personnel or devices.” Id. at § 551.076.

School boards have three additional exceptions they can use to close portions of their meetings. Section 551.082 permits closed sessions when school boards deliberate in cases “involving discipline of a public school child,” unless an open hearing is requested in writing by a parent or guardian of the child. That section also allows a school board to close portions of its meetings to deliberate in cases “in which a complaint or charge is brought against an employee of the school district by another employee and the complaint or charge directly results in a need for a hearing,” unless the employee made the subject of the complaint or charge requests an open hearing in writing. Id. at § 551.082. Section 551.0821 permits a closed meeting “to deliberate a matter regarding a public school student if personally identifiable information about the student will necessarily be revealed by the deliberation.” This exception does not apply if an open meeting about the matter is requested in writing by a parent or guardian or by the student if the student has reached the age of 18. Id. at § 551.0821(c). Section 551.083 permits a school board operating under a consultation agreement authorized by Section 13.901 of the Texas Education Code (repealed in 1993) to deliberate in private regarding “the standards, guidelines, terms, or conditions the board will follow, or instruct its representatives to follow, in consultation with a representative of an employee group.”

Agencies financed entirely by federal money are not required to conduct an open meeting. Tex. Gov’t Code § 551.077.

A medical board or committee is not required to hold open meetings “to deliberate the medical or psychiatric records of an individual applicant for a disability benefit from a public retirement system.” Id. at § 551.078. Section 551.0785 allows a governmental body that administers a public insurance, health, or retirement plan to conduct a closed meeting to deliberate records or information from the medical or psychiatric records of an individual applicant for a benefit from the plan. In addition, the governing board of a municipal hospital, municipal hospital authority, hospital district created under general or special law, or nonprofit health maintenance organization created under Section 534.101 of the Health and Safety Code is not required to conduct open meetings to deliberate “pricing or financial planning information relating to a bid or negotiation for the arrangement or provision of services or product lines to another person if disclosure of the information would give advantage to competitors of the hospital, hospital district, or nonprofit health maintenance organization” or “information relating to a proposed new service or product line of the hospital, hospital district, or nonprofit health maintenance organization before publicly announcing the service or product line.” Id. at § 551.085.

The State Board of Insurance is not required to have open meetings when considering the solvency of people over whom the agency has regulatory authority. Id. at § 551.079. The Board of Pardons and Paroles is not required to have an open session when interviewing or counseling inmates of a facility of the institutional division of the Texas Department of Criminal Justice. Id. at § 551.080. The Credit Union Commission, The Finance Commission of Texas, and the State Banking Board are not required by the Act to deliberate in the open about matters “made confidential by law.” Id. §§ 551.081; .0811. Finally, the Texas Building and Procurement Commission may conduct a closed meeting under certain circumstances. Id. at § 551.0726.

Section 551.086 permits certain power utilities to meet in private to deliberate, vote, or take final action on any competitive matter, defined as a utility related matter that the public power utility governing body in good faith determines by a vote is related to the public power utility’s competitive activity, including commercial information, and, if disclosed, would give advantage to competitors and prospective competitors. This provision expressly provides 13 categories of information that may not be considered “competitive matter” under the section. Id. at § 551.086.

Section 551.087 allows for closed meetings where a governmental body discusses or deliberates regarding commercial or financial information received from certain business prospects or to deliberate the offer of a financial or other incentives to such a prospect.

Deliberations about test items or information related to them may be closed in limited situations. Id. at § 551.088.

The governing board of the Department of Information Resources is not required to conduct an open meeting to deliberate: (1) security assessments or deployments relating to information resources technology; (2) network security information as described by Section 2059.055(b); or (3) the deployment, or specific occasions for implementation, of security personnel, critical infrastructure, or security devices. Id. at § 551.089.

Finally, the Act does not require an enforcement committee appointed by the Texas State Board of Public Accountancy to conduct an open meeting to investigate and deliberate a disciplinary action under Subchapter K, Chapter 901, Occupations Code, relating to the enforcement of Chapter 901 or the rules of the Board. See Tex. Gov’t Code § 551.090.

B. Any other statutory requirements for closed or open meetings

In several instances the Attorney General concluded certain discussions were not “meetings” subject to the Act because the discussion topics were not “public business.” In Tex. Att’y Gen. Op. No. H-223 (1974), the Attorney General determined an open discussion was not necessary for administrative proceedings held by the comptroller hearing division. The Attorney General cited taxation statutory provisions that expressly prohibited the comptroller from making information about a taxpayer’s affairs public in any manner. In Tex. Att’y Gen. Op. No. H-1154 (1978), the Attorney General advised that a county’s child welfare board could meet in a closed session “for the limited purpose of discussing case files where an open meeting would result in a violation of section 33 of (Tex. Rev. Civ. Stat. Ann.] article 695(c),” which made it unlawful for anyone to disclose any information about public assistance applicants or recipients. In Tex. Att’y Gen. Op. No. JC-108 (1999), the Attorney General advised that a hospital district’s proceedings as a medical peer review committee are exempt from the Act.

C. Court mandated opening, closing

III. Meeting categories - open or closed

A. Adjudications by administrative bodies

1. Deliberations closed, but not fact-finding

The definition of “meeting” in Section 551.001(4) includes “a deliberation between a quorum of a governmental body . . . during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action.”

2. Only certain adjudications closed, i.e. under certain statutes

The Act exempts meetings for certain administrative actions including personnel matters, medical board or medical committee meetings where medical or psychiatric records of an individual applicant for a disability benefit from a public retirement system are debated, a meeting of the commissioner of insurance or the commissioner’s designee with the board of directors of a guaranty association, or a meeting involving The Finance Commission of Texas deliberations on a matter made confidential by law. See Tex. Gov’t Code. §§ 551.074; .078; .079; .082.

B. Budget sessions

C. Business and industry relations

Meetings affecting business and industry relations are only excepted, in certain situations, in the area of the purchase, exchange, lease, or value of real property and “negotiated contract[s] for a prospective gift or donation to the state or the governmental body if deliberation in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third person.” Id. at § 551.073.

E. Financial data of public bodies

Other than Section 551.079, which deals with the solvency of private companies regulated by the Texas Department of Insurance, and Sections 551.081 and 551.0811 which deal with the Credit Union Commission and The Finance Commission of Texas deliberations on matters “made confidential by law,” the Act does not contain any proprietary or trade secret protection.

G. Gifts, trusts and honorary degrees

Section 551.073 permits meetings to be closed regarding a “negotiated contract for a prospective gift or donation to the state or the governmental body if deliberation in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third person.”

H. Grand jury testimony by public employees

I. Licensing examinations

In Tex. Att’y Gen. Op. No. JM-640 (1987), the Attorney General concluded that a session of the Polygraph Examiners Board held solely for the purpose of examining prospective licensees would involve no “deliberation” between members and, therefore, was not a “meeting” subject to the Act. The Attorney General has also concluded that testing committees of the Texas Department of Health that review and approve the contents of licensing examinations are not authorized to meet in executive sessions under the Act, since no provision of the Act or any other statute authorizes such sessions. Tex. Att’y Gen. Op. No. LO 96-058 (1996).

J. Litigation, pending litigation or other attorney-client privileges

Section 551.071 provides that a private consultation between a governmental body and its attorney are not permitted except in those instances in which the body seeks the attorney’s advice with respect to pending or contemplated litigation, settlement offers, or matters where the duty of the attorney to the body, pursuant to the Texas Disciplinary Rules of Professional Conduct, clearly conflicts with the Open Meetings Act. See Gonzalez v. Brazos River Harbor Navigations Dist., No. 14-99-00272-CV, 2000 WL 1201899, at *7 (Tex. App.—Houston [14th Dist.] Aug. 24, 2000, pet. denied) (holding that Section 551.071 permits closed discussions with attorney regarding legal matters for which attorney has ethical duty of confidentiality). However, “[g]eneral discussion of policy, unrelated to legal matters, is not permitted under this . . . exception merely because an attorney is present.” Finlan, 888 F. Supp. at 782 n.9 (citing Tex. Att’y Gen. Op. No. JM-100 (1983)); Killam Ranch Props., Ltd. v. Webb County, 376 S.W.3d 146, 157(Tex. App.—San Antonio 2012 (“under this provision the governmental body may not discuss the merits of a proposed contract, financial considerations, or other non-legal matters related to the contract merely because its attorney is present.”). In addition, the Attorney General has held that an administrative agency may conduct proceedings involving disputed claims of privilege or confidentiality of documents in camera in contested administrative proceedings. Tex. Att’y Gen. Op. No. JM-645, at 2927 (1987). The Attorney General, basing its decision on an exception to the Act in the Administrative Procedure and Texas Register Act, Tex. Rev. Civ. Stat. art. 6252-13a, advised that the contested case procedural requirements in the Administrative Procedure and Texas Register Act “creates an exception to the Open Meetings Act with regard to contested cases.” Id..

K. Negotiations and collective bargaining of public employees

The Attorney General has held that the internal deliberations of a city’s collective bargaining team in its preliminary discussions with elected city officials are open to the public but sometimes may be closed if counsel participates. See Tex. Att’y Gen. Op. No. H-816 (1976). The Attorney General went on to hold that actual bargaining sessions between the city and a police officer’s association are open to the public. Id. Also, pursuant to Section 551.083, a school board operating under Section 13.901 of the Texas Education Code is not required to open its meetings regarding “the standards, guidelines, terms, or conditions the board will follow, or instruct its representatives to follow, in a consultation with a representative of an employee group.” Tex. Gov’t Code§ 551.083; see also Tex. Educ. Code § 13.901 (repealed by Acts 1995, 74th Leg., ch. 260, § 58(1), eff. May 30, 1995).

1. Any sessions regarding collective bargaining

2. Only those between the public employees and the public body

Meetings of the Board of Pardons and Paroles may be closed pursuant to Section 551.080 if they are held “to interview or counsel an inmate of the Texas Department of Criminal Justice.” Tex. Gov’t Code. §551.080.

M. Patients, discussions on individual patients

The Act permits closed meetings of “a medical board or medical committee . . . to deliberate the medical or psychiatric records of an individual applicant for a disability benefit from a public retirement system.” Id. at § 551.078; see also Tex. Att’y Gen. Op. No. H-1154 (1978) (stating that The Montgomery County Child Welfare Board is a governmental body within the meaning of the Open Meetings Act but may meet in closed session for the limited purpose of discussing particular case files of persons receiving or applying for public assistance); Tex. Att’y Gen. Op. No DM-340 (1995) (stating that the board of trustees of a public retirement system may consider the individual medical and psychiatric records of an applicant for disability retirement benefits in a closed meeting because in such circumstances, the board of trustees is serving as a medical board or medical committee for purposes of the Open Meetings Act).

N. Personnel matters

The Act permits a closed meeting when there is discussion regarding “the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer,” or where the governmental body hears a complaint or charge against an officer or employee, unless the officer or employee requests a public hearing. Tex. Gov’t Code§ 551.074. The Act does not restrict the non-public disclosure procedure only to actions affecting a current employee. Hispanic Educ. Comm. v. Houston Indep. Sch. Dist., 886 F. Supp. 606, 611 (S.D. Tex. 1994) (“The law allows closed sessions for the discussion of personnel, whether the position is filled or vacant, whether an employee is to be demoted or promoted, and whether the person is a prospective or current employee. The law does not restrict the non-public procedure only to actions affecting a current employee.”). This exception does not apply to an independent contractor. Tex. Att’y Gen. Op. No. MW-129 (1980) (“A governmental body may not meet in closed session to discuss the employment of an independent contractor such as an engineering, architectural or consultant firm.”). When the discussion is not about employees but instead concerns outside consultants, the meetings must be open. See Tex. Att’y Gen. Op. No. JM-595 (1986); Tex. Att’y Gen. Op. No. MW-129 (1979) (discussion of hiring professional consultants must be in open session). Nor does the exception apply when a governmental body wants to discuss the qualifications of people who may serve on an advisory subcommittee, unless those people are employees or public officers. Tex. Att’y Gen. Op. No. DM-149 (1992). An employee or public officer who is the subject of deliberations under Section 551.074 has a right to an open hearing, but he cannot insist on a closed hearing. Tex. Att’y Gen. Op. No. JM-1191 (1990).

1. Interviews for public employment

2. Disciplinary matters, performance or ethics of public employees

Section 551.082 permits closed sessions when school boards consider a “complaint or charge . . . brought against an employee of the school district by another employee and the complaint or charge directly results in a need for a hearing” unless an open hearing is requested in writing by the employee against whom the complaint or charge is brought.

3. Dismissal, considering dismissal of public employees

Generally, an employee or public officer who is the subject of deliberations under Section 551.074 has a right to an open hearing, but he cannot insist on a closed hearing. Tex. Att’y Gen. Op. No. JM-1191 (1990) (stating that the Open Meetings Act permits, but does not require a school board of trustees to hold an executive closed session to consider a teacher’s grievance); Mayes, 922 S.W.2d at 203 (“[T]ermination of a city’s police chief is a matter of special interest to the public that does not fall into the category of ordinary personnel matters.”).

O. Real estate negotiations

Section 551.072 provides that meetings may be closed regarding “the purchase, exchange, lease, or value of real property if deliberations in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third person.” The exemption was created to keep a governmental entity from having to “‘telegraph its punch’ in an open meeting to the detriment of the taxpayers, not to use it as a blank check to cut a deal in private, devoid of public input or debate..” Finlan, 888 F. Supp. at 787. Under this exemption, members of a governmental body “‘may consult with their employees in private, but may not consult with other third parties in private.’” Id. (quoting Tex. Att’y Gen. Op. No. DM-191 (1992)). Thus, “[w]hen third parties are allowed into closed meetings where they can observe [the governmental body’s] deliberations, the privilege is waived so that the public cannot be legitimately shut out.” Id.

P. Security, national and/or state, of buildings, personnel or other

Q. Students, discussions on individual students

Section 551.082 permits closed sessions when school boards consider “discipline of a public school child,” unless an open hearing is requested in writing by a parent or guardian of the child. But see United Indep. Sch. Dist. v. Gonzalez, 911 S.W.2d 118, 127 (Tex. App.—San Antonio 1995, writ denied per curiam, 940 S.W.2d 593 (Tex. 1996) (right to open session waived where, after providing written demand for open meeting, the student failed to object to the board president’s announcement that the board would retire to executive session to consider expulsion).

IV. Procedure for asserting right of access

A. When to challenge

Section 551.142 provides that an interested person, including a member of the news media, may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of the Act by members of a governmental body. Tex. Gov’t Code § 551.142; see also Finlan, 888 F. Supp. at 784. An action taken by a governmental body in violation of this Act is voidable. Tex. Gov’t Code§ 551.141.

1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

Generally, injunctions and petitions for writ of mandamus are reviewed by the Courts on a more expedited basis. If a party wishes to request attendance at an upcoming meeting, request that the court rule that she is not barred from a meeting or receive a ruling regarding future meetings, she should file a request for injunctive relief.

There are two general types of injunctions—prohibitory and mandatory. And, there are three types of injunctive orders—(1) temporary restraining order; (2) temporary injunction; and (3) permanent injunction. Each is extremely detailed and would require the assistance of an attorney. Their requirements are detailed in Texas Rules of Civil Procedure 680-693a.

When a party desires that the court require another party to act affirmatively—for example, when the party is requesting that the court rule that she is permitted to attend upcoming meetings (rather than merely to refrain from certain conduct), then she must file a request for a mandatory injunction. RP&R, Inc. v. Territo, 32 S.W.3d 396, 400 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (mandatory injunction required when party requested to receive weekly paychecks).

2. When barred from attending

3. To set aside decision

Any action taken by a governmental body in violation of the Act is voidable, Tex. Gov’t Code § 551.141, and may be reversed in a mandamus or injunction action after the decision is rendered. Id. at § 551.142.

If a party dislikes a ruling issued by a district court judge, it can file a petition for a writ of mandamus in the appropriate appellate court. However, appellate courts have broad authority to determine what issues can be addressed through a mandamus. If the appellate court denies the request for mandamus, the party can file a motion for rehearing within fifteen days after the order is rendered. Tex. R. App. P. 52.9.

4. For ruling on future meetings

The Act explicitly provides that an “interested person, including a member of the news media,” can bring an action for mandamus or injunction to ‘prevent” a “threatened violation” of the Act. Tex. Gov’t Code § 551.142. Concerned parties may therefore seek court rulings on future meetings that threaten a violation. See id.

5. Other

B. How to start

The Act permits immediate access to the courts when there is an actual or threatened violation. Tex. Gov’t Code § 551.142. An application for writ of mandamus may be filed in a district court with a show cause order providing for a response within ten days. There are no cases detailing whether the show cause procedure is preferred and, on occasion, open meetings cases have been litigated as normal civil lawsuits.

1. Where to ask for ruling

a. Administrative forum

b. State attorney general

The Act does not provide an enforcement role for the Attorney General, but governmental attorneys prosecuting a criminal case under the Act’s provisions may request the Attorney General’s assistance. See Tex. Gov’t Code § 402.028(a).

c. Court

A party can file suit in the applicable district court or county court and include with it an application for an injunction. See Tex. Gov’t Code § 551.142. A party can also make an application for a writ of mandamus and file it in the appropriate appellate court, including a court of appeals or the Supreme Court of Texas. Tex. R. App. P. 52.1.

2. Applicable time limits

Strategically, a request for injunctive relief should be made as soon as possible after the problem arises such that a party’s rights can be preserved and a ruling can be received before, for example, another closed meeting takes place. The same is true for a petition for writ of mandamus.

That being said, there is no time limit specified in the Act for filing suit after the alleged violation, so the four-year residual statute of limitations applies. Rivera v. City of Laredo, 948 S.W.2d 787, 793 (Tex. App.—San Antonio 1997, writ denied) (“[A]n action brought under the Open Meetings Act would fall under the four-year residual limitations period in Tex. Civ. Prac. & Rem. Code § 16.051 since the Act does not specify the amount of time a plaintiff has to bring an action for open meetings violations.”).

3. Contents of request for ruling

The required contents of a petition for a writ of mandamus is detailed in Texas Rule of Appellate Procedure 52. The petition requesting a writ of mandamus must include the following: (1) Identity of Parties and Counsel; (2) Table of Contents; (3) Index of Authorities; (4) Statement of the Case; (5) Statement of Jurisdiction; (6) Issues Presented; (7) Statement of Facts; (8) Argument; (9) Prayer; (10) Certification; and an (1) Appendix. Tex. R. App. P. 52.3.

Excluding those pages containing the identity of parties and counsel, the table of contents, the index of authorities, the statement of the case, the statement of jurisdiction, the issues presented, the signature, the proof of service, the certification, and the appendix, the petition and response must not exceed 50 pages each if filed in the court of appeals, or 15 pages each if filed in the Supreme Court. A reply may be no longer than 25 pages if filed in the court of appeals or 8 pages if filed in the Supreme Court, exclusive of the items stated above. The court may, on motion, permit a longer petition, response, or reply. Tex. R. App. P. 52.6

4. How long should you wait for a response

Any party may file a response to the petition for writ of mandamus, but it is not mandatory. Tex. R. App. P. 52.4. The court must not grant relief—other than temporary relief—before a response has been filed or requested by the court. Id.

The response must conform to the requirements of Tex. R. App. P. 52.3, except that: (a) the list of parties and counsel is not required unless necessary to supplement or correct the list contained in the petition; (b) the response need not include a statement of the case, a statement of the issues presented, or a statement of the facts unless the responding party is dissatisfied with that portion of the petition; (c) a statement of jurisdiction should be omitted unless the petition fails to assert valid grounds for jurisdiction, in which case the reasons why the court lacks jurisdiction must be concisely stated; (d) the argument must be confined to the issues or points presented in the petition; and (e) the appendix to the response need not contain any item already contained in an appendix filed by the relator. Id.

A reply to the response may be filed. Tex. R. App. P. 52.5 However, the court may consider and decide the case before a reply brief is filed. Id.

5. Are subsequent or concurrent measures (formal or informal) available?

C. Court review of administrative decision

1. Who may sue?

Section 551.142 provides that an “interested person,” including members of the news media, may commence an action. Tex. Gov’t Code§ 551.142; see Finlan, 888 F. Supp. at 783 (a taxpayer citizen of the City of Dallas was an “interested person” with standing to seek an injunction to prohibit violations of the Act by an ad hoc sports development committee created to consider the construction of a new sports facility); City of Bells v. Greater Texoma Utility Authority,744 S.W.2d 636, 639-40 (Tex. App.—Dallas 1987, no writ) (City had standing to sue regarding utility authority’s violations of the Act whereas result of meeting held in violation of this section, City was sued and placed in position of either posting two million dollar bond or forever losing any claims it had against utility authority)

2. Will the court give priority to the pleading?

If the suit is for injunction to remedy a threatened violation of the Act, the Texas Rules of Civil Procedure apply and provide for an expedited remedy. For example, a party may, on an ex parte basis, apply for a temporary restraining order followed by a hearing for a temporary injunction. If the suit is for mandamus, the plaintiff may request a show cause order requiring the governmental body to respond to the petition at a hearing within ten days.

3. Pro se possibility, advisability

In Texas, it is not advisable to attempt to remedy violations of the Open Meetings Act on a pro se basis. The Texas Rules of Civil Procedure are extremely complex to a layperson and the governmental body will almost certainly have counsel representing it.

a. Open the meeting

b. Invalidate the decision

The Texas Open Meetings Act expressly provides that “[a]n action by a governmental body in violation of this chapter is voidable.” Id. at § 551.141. It does not state that governmental acts in violation of act are void or void ab initio. Id. Because the governmental act is merely voidable, it is valid until adjudicated and declared void. Meeker v. Tarrant Cty. College Dist., 317 S.W.3d 754, 759 (Tex. App.—Fort Worth 2010, pet. denied). See alsoHousing Authority of City of Dallas v. Killingsworth, 331 S.W.3d 806, 812 n.5 (Tex. App.—Dallas 2011, pet. denied) (“Even assuming the manner in which the contract was approved violated [the Act], the approval of the contract in the executive session of the Board is not necessarily null or void. Rather, the approval is merely voidable at the instance of someone with standing to complain. Tex. Gov’t Code § 551.141. The approval remains valid ‘until adjudicated and declared void.’ . . . Thus, even a contract procured by a potentially voidable act is still a valid contract.”).

c. Order future meetings open

Courts are empowered to determine whether a future meeting should be open. See, e.g.,The Pea Picker, Inc. v. Reagan, 632 S.W.2d 674, 677 (Tex. App.—Tyler 1982, writ ref’d n.r.e.) (“the trial court had power to construe the statute as to whether notice of such a meeting must be given, and when a meeting is required to be open.”); see also Tex. Gov’t Code §551.142.

5. Pleading format

6. Time limit for filing suit

There is no time limit specified in the Act for filing suit. Therefore, the four-year residual statute of limitations applies. Rivera v. City of Laredo, 948 S.W.2d 787, 793 (Tex. App.—San Antonio 1997, writ denied) (“[A]n action brought under the Open Meetings Act would fall under the four-year residual limitations period in Tex. Civ. Prac. & Rem. Code § 16.051 since the Act does not specify the amount of time a plaintiff has to bring an action for open meetings violations.”); Tex. Civ. Prac. & Rem. Code § 16.051 (West 2014) (“Every action for which there is no express limitations period, except an action for the recovery of real property, must be brought not later than four years after the day the cause of action accrues.”). The statute of limitations for mandamus actions is four years.

7. What court?

Venue for open meetings cases is governed by the Texas Civil Practices and Remedies Code. In a state as large as Texas, there are complicated venue provisions. Generally, local governmental bodies may be sued in the county where they are located. Some state agencies must be sued in Travis County where the state capital is located.

8. Judicial remedies available

The court may issue a writ of mandamus directed to members of the governing body subject to the Act. The court also may issue a declaratory judgment or an injunction. See Tex. Gov’t Code§ 551.142; The Pea Picker, Inc., 632 S.W.2d at 677 (stating thatsince parties were uncertain whether meeting of public officials was required to be open, trial court had power to construe statute as to whether notice of meeting must be given and when meeting is required to be open; thus actual controversy existed as basis for declaratory judgment action).

9. Availability of court costs and attorney's fees

Pursuant to Section 551.142(b), the court may award costs of litigation and reasonable attorney fees to either a plaintiff or a defendant who substantially prevails. The award of these costs and fees is discretionary. “In exercising its discretion, the court shall consider whether the action was brought in good faith and whether the conduct of the governmental body had a reasonable basis in law.” § 551.142(b); see also Piazza, 909 S.W.2d at 535; Ferris v. Texas Bd. of Chiropractic Exam’rs, 808 S.W.2d 514, 519 (Tex. App.—Austin 1991, writ denied). Meeker, 317 S.W.3d at 762 (“[S]ection 551.142(b) does not authorize attorney’s fees for succeeding on a claim for declaratory relief”).

10. Fines

Pursuant to Section 551.144, a member of a governmental body who knowingly calls or aids in calling or organizing a special or called closed meeting, or who knowingly closes or aids in closing a regular meeting to the public, or who knowingly participates in a regular, special, or called meeting that is closed to the public, commits a misdemeanor offense punishable by a fine of not less than $100 or more than $500 or confinement in the county jail for not less than one month or more than six months, or both. It is an affirmative defense to prosecution that the member of the governmental body acted in reasonable reliance on a court order or a written interpretation of this Act contained in an opinion of a court of record, the attorney general, or the attorney for the governmental body.

Section 551.143 provides that a member or group of members of a governmental body who knowingly conspires to circumvent the provisions of the Act by meeting in numbers less than a quorum for the purpose of secret deliberations in contravention of the Act commit a misdemeanor offense punishable by a fine of not less than $100 or more than $500 or confinement in the county jail for not less than one month or more than six months, or both.

Section 551.145 provides that a “member of a governmental body commits an offense if the member participates in a closed meeting of the governmental body knowing that a certified agenda of the closed meeting is not being kept or that a tape recording of the closed meeting is not being made.” A violation of this subsection is a Class C misdemeanor.

In Asgeirsson v. Abbott, the federal district court ruled that the criminal provisions of the Texas Open Meetings Act did not violate a City Councilmember’s free speech rights. 773 F. Supp. 2d 684 (W.D. Tex. 2011), aff’d, 696 F.3d 454 (5th Cir. 2012). Members of the Alpine City Council brought suit against the Attorney General after being indicted for violating the Act following an email exchange that allegedly constituted a closed meeting under Act. Id. at 1. The indictments were later dismissed without prejudice. The court stated that, pursuant to the Act, citizens are entitled not only to know what the government decides but also to observe how and why every decision is reached and that the explicit command of the Act is for openness at every stage of the deliberations. Id. at 6. Ultimately, the court held that the Act is not a violation of free speech and explained:

[the Act] is not about censorship but rather about the disclosure of the speech in question. If [the Act’s] true aim was to suppress the content of a governmental body’s speech, then there would be no disclosure requirement. [The Act] is not directed at the content of the public official’s speech or the effect that speech might have on the general public. [The Act] is concerned with giving the public more access to their government. Thus, this Court finds that [the Act] does not suppress speech.

Id. at 10.

Under Section 551.146, an individual, corporation, or partnership commits an offense if, without lawful authority, he, she or it “knowingly discloses to a member of the public the certified agenda or tape recording of a meeting that was lawfully closed to the public” under the Act. An offense under Section 551.146 is a Class B misdemeanor and there is a provision for a civil remedy including actual damages (including damages for personal injury or damage), lost wages, defamation, or mental or other emotional distress as well as reasonable attorney fees and court costs and exemplary damages. It is a defense to prosecution and an affirmative defense that the defendant had good reason to believe the disclosure was lawful or the disclosure was the result of a mistake of fact concerning the nature or content of the certified agenda or tape recording.

2. Time limits for filing appeals

3. Contact of interested amici

The Freedom of Information Foundation of Texas Inc. is a statewide clearinghouse for freedom of information matters and will coordinate amicus curiae efforts. Interested people should contact Kelley Shannon, Executive Director, Freedom of Information Foundation of Texas at (512) 377-1575. The foundation’s address is 3001 N. Lamar Boulevard, Suite 302, Austin, Texas 78705. The foundation may also be contacted through its e-mail address, kelley.shannon@foift.org, and over the Internet, at www.foift.org.

The foundation also operates a hotline (800-580-6651) staffed by volunteer Texas media law attorneys who will help answer questions regarding open government laws in Texas.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state’s highest court.

V. Asserting a right to comment

The Act does not create a right to comment. Charlestown Homeowners Ass’n Inc. v. LaCoke, 507 S.W.2d 876, 883 (Tex. Civ. App.-Dallas 1974, writ ref’d n.r.e.). In Tex. Att’y Gen. Op. No. H-188 (1973), the Attorney General concluded that, although the Act does not give the public a right to speak during meetings under the Act, the governmental body may allow members of the public to speak and participate. In doing so, however, the governmental body must allow comments in an even-handed fashion and may not discriminate among views seeking expression.

A. Is there a right to participate in public meetings?

Although it is customary practice that comments be heard from the general public during public meetings, the Open Meetings Act does not actually provide the public a right to participate or comment at public meetings. Tex. Att’y Gen. Op. No. JC-0169 (2000) (citing Charlestown Homeowners Ass’n, 507 S.W.2d at 883); Tex. Att’y Gen. Op. No. JM-584 (1986); Tex. Att’y Gen. Op. No. H-188 (1973); see also Eudaly v. City of Colleyville, 642 S.W.2d 75, 77 (Tex. App.—Fort Worth 1982, writ ref’d n.r.e.) (distinguishing between “public meeting,” where public was not entitled to comment, and “public hearing,” where public was entitled to comment). A meeting that is “open to the public” under the Act is one that the public is entitled to attend, not one in which they are entitled to participate. See Tex. Att’y Gen. Op. No. M-220 (1968); Tex. Att’y Gen. Op. No. LO-96-111 (1996).

B. Must a commenter give notice of intentions to comment?

A commenter does not have to give notice of an intention to comment. Tex. Gov’t Code § 551.042; see also Peavy v. Dallas Indep. School Dist., 57 F. Supp. 2d 382, 393 (N.D. Tex. 1999) (President of school district board of trustees did not violate Texas Open Meetings Act by allowing transcript of trustee’s telephone conversation, containing controversial and offensive comments, to be read during report period of school district meeting, where board had long established practice of allowing trustees to make reports, even though issue was not specifically listed on meeting’s agenda); and Tex. Att’y Gen. Op. No. JC-0169 (2000)(“‘Public comment’ provides sufficient notice under the Open Meetings Act of the subject matter of ‘public comment’ sessions where the general public addresses the governmental body about its concerns and where the governmental body does not comment or deliberate except as authorized by [S]ection 551.042 of the Government Code.”).

If a member of the public inquires about a subject for which notice was not given, the governmental body may respond with specific factual information or provide information on the current policy in response to the inquiry without violating the notice provisions of the Open Meetings Act. Tex. Gov’t Code § 551.042. Any other discussion, deliberation, or decision regarding the subject matter will be limited to a proposal to place the subject on the agenda for another meeting. Id. at § 551.042; Hays City Water Planning P’ship v. Hays Cty., Tex., 41 S.W.3d 174, 181 (Tex. App.—Austin 2001, pet. denied).

C. Can a public body limit comment?

A governmental body may limit comment since there is no right to comment at open public meetings. See Tex. Att’y Gen. Op. No. JC-0169 (2000). If a governmental body wishes to allow members of the public to speak at its public meetings, it may adopt reasonable rules consistent with relevant provisions of law allowing them to do so. Id. (citing Tex. Att’y Gen. Op. No. H-188 (1973); Tex. Att’y Gen. Op. No. LO-96-111 (1996)).

D. How can a participant assert rights to comment?

As stated above, the Open Meetings Act does not actually provide the public a right to participate or comment at public meetings. Tex. Att’y Gen. Op. No. JC-0169 (2000). Typically, the member of the public shows up at the meeting, fills out a card indicating they wish to address the body, and then is called upon when the comments section of the meeting is reached. Id. Topics are usually entirely at the discretion of the speaker. Id.